write.as

Court of Justice of the European Union Registry of the Court Rue du Fort Niedergrünewald L-2925 Luxembourg OBSERVATION by Mr. ..................................- Bulgarian citizen Ref: ECLI:EU:C:2019:333 OPINION OF ADVOCATE GENERAL SAUGMANDSGAARD ØE delivered on 30 April 2019 (1) Joined Cases C‑708/17 and C‑725/17 http://curia.europa.eu/juris/document/document.jsf?text=&docid=213510&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9647633 Dear Sirs, 1. As a Bulgarian citizen and a consumer of district heating I am deeply concerned about the forthcoming preliminary ruling of the Court of Justice, regarding the above mentioned cases, which, if based on the opinion of the Advocate General, may affect adversely hundreds of thousands of Bulgarian consumers, enslaved by the Heat Distribution Monopolies. 2. In this respect I find the opinion of Advocate General Saugmandsgaard fundamentally flawed, as it is based on carefully selected, possibly by his Bulgarian counterparts, fragments of the relevant national legislative acts, which, taken out of context, give as a whole completely distorted picture of the actual state of affairs, thus failing to address the real issues at hand. 3. The many questions raised by the referring courts, according to Advocate Saugmandgaard, concern essentially two issues/par. 3 and 4 of the Opinion/. I shall only address the first issue, namely ".....whether the Bulgarian legislation, in so far as it provides that co-owners of buildings in co-ownership supplied by a heat network are required to contribute to heating costs even if, like Ms Dimitrova and Mr Dimitrov, they do not use it in their apartments, requires individuals in their position to accept an unsolicited supply of district heating, contrary to Article 27 of Directive 2011/83." 4. Before addressing this issue I must share a fair description of the procedure by which a co-owner in a communal building becomes a consumer of district heating. I shall also refer to the relevant points of law with reference to the so called Energy Act/otherwise called Law on energy/, which is the primary legislative act governing the business relations between heat distribution/HD/ companies and communal consumers, as well as the secondary legislation - Regulation 16-334_ 2007 on district heating 5. Step One. A decision to connect a communal building to an existing HD company's pipeline is made by two thirds majority vote at a General Assembly meeting of the co-owners of the communal building. Such is the provision of art. 133/2/ of the Energy Act, which also provides that a written consent should be drafted in confirmation of the above mentioned majority vote. 6. Step Two. An appointed representative of the co-owners submits a request before the HD company to initiate a preliminary technical assessment, prior to the connection procedure, pursuant to art. 17 and art.29 of Regulation 16-334. 7. Step Three. A preliminary written contract with the HD company is drafted and signed by both parties within 30 days after the submission of the request, defining all technical aspects of the future connection, pursuant to art.17(1) 4 and (2) and art.30 and 31 of Regulation 16-334. 8. Step Four. A second request is filed with the HD company by an appointed representative of the co-owners, for a permanent written contract to be signed, prior to connection, between both sides. This contract is based on the parameters of the preliminary contract, according to art. 17 (3), (4) and (5) and art. 31 Regulation 16-334_ 2007, and is preceded by another written contract, allowing the HD company to use free of charge part of the basement of the communal building for a pump station. 9. Step Five. After the signature of the above contract the HD company connects the communal building to its existing pipework. 10. Step Six. A decision is made by the General assembly of the co-owners with a majority vote, which company will be responsible for the installation and maintenance of the heat meters and for calculation of the monthly individual bills, pursuant to art. 139b Energy Act. A written consent is required from two thirds of the co-owners. 11. Step Seven. District heating is provided to individual consumers on a contractual basis, where a written sales contract is concluded between the seller/the HD company or a public provider/ and the consumers, pursuant to art.149(1) 6 Energy Act and art.38.2 and art.39 (1) and (2) of Regulation 16-334. 12. It is abundantly clear from the above that the sale/purchase of district heating is based on a contracts between the trader/HD company/ and the individual consumers and that these contracts fall within the scope of Directive 2011/83/EU on consumer rights. 13. It is also clear that the connection of a communal building to an existing HD company's pipeline is also based on written contracts/one preliminary and two permanent/, signed between an appointed representative of the co-owners and the HD company. These contracts also fall within the scope of Directive 2011/83/EU on consumer rights. 14. Therefore, it is beyond belief or comprehension why the Bulgarian Government have chosen to twist and corrupt the Lawmakers will, explicitly laid down in the above mentioned legislative acts, to the extend of making that will unrecognizable. 15. Furthermore, I shall respectfully point out some of the misconceptions in the Advocate General's Opinion, referencing the particular paragraphs. 16. Ref. par.45. Connection of the internal installation of a building in co-ownership to a heat network requires the written consent of co-owners representing at least two thirds of the co-ownership of the building in question. (22) That connection gives rise to a contract (23) and the supply of thermal energy to the building is subject to general conditions. (24) Indeed, the connection of a communal building to a heat network does require written consent of two thirds of the co-owners. That consent, or the connection itself, DO NOT give rise to a contract. On the contrary. Following the vote is a complex procedure, laid down in the national Bulgarian legislation/described above/, including the signature of three contracts between the HD company and the appointed representative of the co-owners. Only after the signature of those three contracts is the HD company allowed to connect the building to its pipeline. 17. Ref. par.46. When a building is connected to a heat network, Article 153(1) of the Law on energy provides that all the owners (or holders of a right in rem of the usufruct type or right of use) in respect of the private parts connected to the internal installation are thermal energy customers. In that capacity, they are required to contribute to the costs corresponding to the thermal energy used in the building under the conditions and in accordance with the detailed rules laid down by the District Heating Order... Article 153(1) of the Law on energy DOES NOT provide that all the owners (or holders of a right in rem of the usufruct type or right of use) in respect of the private parts, connected to the internal installation, are thermal energy customers. What art.153(1) does, is to simply point out who qualifies to be, potentially, a consumer of district heating. This can only be a natural person, an individual, who is an owner or a tenant, or holder of a right in rem in the particular communal building, nothing more, nothing less. Art.153 DOES NOT AND CAN NOT strip the individual owners of their legal individual rights, enshrined in national legislation/art.149(1) 6 Energy Act and art.38.2 and art.39 (1) and (2) of Regulation 16-334/, namely, to conclude a written contract with the trader/the HD company or a public provider/ prior to the purchase of district heating. Only after entering such a contract a consumer may be liable to pay proportion of the heat losses in the building, even though the individual radiators in his flat are disconnected. 18. Ref. par.47. Each co-owner may choose not to use, in his apartment, the thermal energy thus supplied, by turning off his radiators. (25) However, under Article 153(6) of the Law on energy, co-owners who have declined heating in their apartments are still required to pay part of the heating costs of the building, namely those corresponding to the heat released by the internal installation and to heat used for the common parts. This applies until the removal of the connection of the building to the heat network (involving the termination of the contract for the supply of district heating), which also requires the written consent of co-owners representing at least two thirds of the co-ownership of the building in question... Indeed, co-owners who have declined heating in their apartments should be still required to pay part of the heating costs of the building, UNTIL the expiration of their individual contracts with the HD company or the public provider. This has no relevance, whatsoever, to the connection of the building to the heat network or the written consent of the majority co-owners. 19. Ref. par.48. Ms Dimitrova and Mr Dimitrov, joined together by the referring courts, consider that situation to be incompatible with EU consumer law, in particular with Article 27 of Directive 2011/83. They submit inter alia that the Law on energy requires co-owners who do not use the district heating in their apartments to accept an 'unsolicited supply' of that heating, within the meaning of that provision. That provision provides for a contractual remedy in that respect: a consumer, following such a supply 'shall be exempted from the obligation to provide any consideration'. Ms Dimitrova and Mr Dimitrov should not therefore be required to contribute to the heating costs of their buildings. I could not agree more with Mr.. Dimitrov and Ms. Dimitrova. In the absence of a contract, required by law, for the supply of district heating, any such supply falls within the scope of Directive 2011/83/EU on consumer rights, as it qualifies as "unsolicited supply". 20. 49. In the present case, the criticisms of Ms Dimitrova and Mr Dimitrov focus on Article 153(1) and (6) of the Law on energy. First, there is the fact that, in accordance with the former paragraph, the obligation of each co-owner to contribute to the costs of communal heating and hot water does not stem from the conclusion of a contract between that co-owner and the distributor, but exists solely by reason of ownership of an apartment connected to the internal installation.... IT IS NOT A FACT that, in accordance with art.153(1) Energy Act, the obligation of each co-owner to contribute to the costs of communal heating and hot water does not stem from the conclusion of a contract ........, but exists solely by reason of ownership of an apartment connected to the internal installation. Th owner's obligation to contribute to the cost of communal heating DOES STEM from the conclusion of a sales/purchase contract and NOT from the ownership of an apartment. The evidence in this respect is overwhelming and indisputable. 21. Ref. par.59. In the present case, first, the supply of energy described was not carried out on the initiative of a trader but in accordance with the requirements of the Bulgarian legislature. Under the Law on energy, the energy distributor is required to connect customers who request it to the heat network (40) and to supply the connected buildings with thermal energy. I seriously doubt that a supply carried out under a legal obligation may be classified as an 'unsolicited supply', within the meaning of Article 27 of Directive 2011/83. (41) I could not disagree more with any of the above statements. Energy distributors ARE NOT obligated and will NEVER connect any communal building to their pipeline on the basis of a simple "request". As I clearly described in the beginning, the procedure for connecting such a building is a complex one and it involves, apart from the initial written consent of the majority of co-owners, carefull technical assessment and evaluation, as well as the signature, over time, of three contracts/one preliminary and one permanent, for the actual connection, and one for the right of the heat distribution company to use part of the basement for pump station/. Those are the requirements of the Bulgarian legislation. Furthermore, such request for connection DOES NOT at all, by itself, constitute "solicitation" for the purchase of heat energy from the distributor. Even after the signature of the above mentioned three contracts, prior to the connection, there is no obligation for the HD company to supply anything, but to honor those contracts and connect its pipes to the communal pump station. Nothing more. This is not a request for purchase of heat energy. 22. Ref. par.60. Second, and in any event, the supply of heating is indeed a consequence, of an express prior request. Each co-owner is linked to the distributor provided that a qualified majority of them has expressly consented to that supply in writing. The point is that Ms Dimitrova and Mr Dimitrov dispute the fact that a certain majority of the co-owners can commit all of them (including persons becoming owners subsequently) and that the same majority is necessary for dispensing with all thermal energy supply in the building. I see no need to comment on those observations of the Advocate General. The supply of heating IS NOT a consequence of a simple request. That is evident from the arguments in the previous paragraph 21. 23. Ref. par.62. The internal heating and hot water installation is, specifically, a common part in co-ownership. (43) The supply of heating and hot water in the building, since it involves the use of that internal installation, is a service offered to the owners collectively and, accordingly, is a matter for the co-ownership in its entirety. The 'application' for district heating is based, logically, on a decision of that co-ownership. (44) The supply of heating and hot water in a communal building, although it involves the use of an internal installation, is NOT a service offered to the owners collectively. This is crystal clear from the relevant legal framework, described previously. 24. Ref. par.63. Moreover, once that decision has been taken, it is also logical that each co-owner is required to contribute to the costs corresponding to the losses of the internal installation and to the heat consumption of the other communal parts of the building: in his capacity as joint owner of those parts, he is also a 'consumer' of that heat. (45) It matters little, in that regard, that he intends to heat his apartment by his own means without recourse to collective heating, that he does not occupy the premises or that he has removed his radiators. (46) Another completely false statement is that joint ownership somehow grants "consumer" status. The applicable national legislation clearly states that the sale/purchase of heat energy, is contract based and only those contracts are legally binding. All other issues, related to joint ownership are irrelevant. 25. Ref. par.65. In that context, it cannot be inferred from Article 27 of Directive 2011/83, as Ms Dimitrova and Mr Dimitrov seem to do, that a consumer must always consent individually to the delivery of any goods or the supply of any service, and must be able individually to terminate the contract providing for that delivery or supply. I consider that Directive 2011/83 does not preclude, in certain complex situations, involving a form of community of consumers and a good or service provided to them collectively, the consent given by some of them binding the others, (49) .......That Directive, or EU law in general, simply does not address those particular issues. Indeed, there may be hypothetical complex situations, involving a form of community of consumers and a good or service provided to them collectively, where the consent given by some of them is binding on the others. The cases, on the other hand, that led to the requests for preliminary ruling, ARE NOT such situations. Moreover, these situations DO fall within the scope of Article 27 of Directive 2011/83 and DO require individual consent for the delivery of any goods or the supply of any service, or otherwise qualify as unsolicited supply. 26. Andrei Vyshinski, a former Russian Foreign minister, while addressing the United Nations General Assembly at its 183rd session in Paris, is known to have said " Human rights can not be conceived outside the prerogatives of the State. The very understanding of human rights is a State concept." Even today, after Bulgaria's accession to the European Union, this cynical approach to human, as well as consumer rights, enforced by the Bulgarian State and judiciary for the benefit of monopolists and oligarchs, constitutes the deepest division between democratic Europe and the communist concept of law and justice. Consumer rights, enshrined in European Law, are INDIVIDUAL rights and consumer may ONLY be a natural person, an individual, not some abstract entity. Take that away and all you have left is slavery. 27. In the light of the above observations, I respectfully suggest that the Court should reconsider the Advocate General's opinion, before ruling on the questions raised by the referring courts. I also suggest, that on the subject of applicability of Directive 2011/83 to national legislation, two scenarios should be considered. First, co-owners, who do not contribute to the heat losses and heating costs of the building, when they have not individually solicited the heating supply and they have not signed a valid contract with the provider of district heating/which is an explicit requirement of national legislation, pursuant to art.149(1) 6 Energy Act and art.38.2 and art.39 (1), (2) of Regulation 16-334/. In this scenario, any attempts to extort money from those people would be in breach of Directive 2011/83. Second, co-owners, who have stopped using heat in their apartments, but still have valid contracts with the provider or distributor of district heating, that have not yet expired. I think that ONLY in that second scenario should those co-owners contribute to the heat losses and the heating costs of the building proportionately. Yours sincerely, ...................................... 16/06/2019