Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 11 July 2024 (1)

Case C‑205/23

Engie România SA

v

Autoritatea Naţională de Reglementare în Domeniul Energiei

(request for a preliminary ruling from the Tribunalul Bucureşti (Regional Court, Bucharest, Romania))

(Reference for a preliminary ruling – Energy – Directive 2009/73/EC – Internal market in natural gas – Article 3 – Public service obligations and consumer protection – Breach by a natural gas supplier of its duty of transparency towards household customers – Duplication of administrative penalties for the same offence – Charter of Fundamental Rights of the European Union – Article 50 – Principle ne bis in idem – Article 52(1) – Limitations on the principle ne bis in idem – Proportionality)

I.      Introduction

1.        This request for a preliminary ruling, made by the Tribunalul Bucureşti (Regional Court, Bucharest, Romania), concerns the interpretation of Articles 50 and 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the principle of proportionality.

2.        The request has been made in proceedings between Engie România SA (‘Engie’ or ‘the appellant’), a natural gas supplier, and the Autoritatea Națională de Reglementare în Domeniul Energiei (National Energy Sector Regulatory Authority) (‘ANRE’) concerning a report drawn up by the latter, finding and imposing a fine for an administrative offence allegedly committed by Engie.

3.        In keeping with the Court’s request, my Opinion will focus on an analysis of the second question referred for a preliminary ruling, which concerns the application of the principle ne bis in idem enshrined in Article 50 of the Charter, read together with Article 52(1) thereof, which introduces limitations on the exercise of that principle. More particularly, the question arises, in essence, whether imposition of an administrative penalty on a natural gas supplier both by the energy sector regulatory authority and the consumer protection authority, on the basis of facts that are the same but are penalised separately by those two authorities on the basis of different provisions, constitutes a justified restriction on the application of that principle.

4.        The present case gives the Court the opportunity, first, to refine its case-law with regard to taking into account the principle ne bis in idem in a context in which two administrative procedures co-exist for investigating and penalising a legal person, conducted in parallel by two different competent authorities, which have issued separate individual penalty measures in respect of the same alleged acts and, second, to determine to what extent such a combination of measures complies with the principle of proportionality enshrined in EU law.

II.    Legal background

A.      European Union law

5.        The principle ne bis in idem is set out in Article 50 of the Charter, entitled ‘Right not to be tried or punished twice in criminal proceedings for the same criminal offence’, and reads as follows:

‘No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’

6.        Article 51 of the Charter, entitled ‘Field of application’, states, in paragraph 1:

‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.’

7.        Article 52 of the Charter, entitled ‘Scope and interpretation of rights and principles’, provides in paragraph 1:

‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’

B.      Romanian law

8.        According to Article 143(1)(k) of Legea nr. 123, energiei electrice și a gazelor naturale (Law No 123 on electricity and natural gas) of 10 July 2012, (2) (‘Law No 123/2012’):

‘Natural gas suppliers are, inter alia, under an obligation:

…

(k)      to provide final customers with clear information on the prices and tariffs applied, as well as on the conditions of access to and use of the services which they offer.’

9.        Article 194(24¹) of that law provides:

‘The following constitute breaches of the provisions governing activities in the natural gas sector: … failure by participants in the natural gas market to comply with their duties under Article 143(1), Article 144-a and Article 145(4)(g).’

10.      Under Article 195(2)(c) of that law, such administrative offences are punishable by a fine of between 20 000 Romanian lei (RON) and RON 400 000 (approximately EUR 4 057 and EUR 81 147).

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the proceedings before the Court of Justice

11.      By decision of 14 September 2021, the Autoritatea Națională pentru Protecția Consumatorilor (the National Authority for Consumer Protection, Romania, (‘ANPC’) found that Engie had employed misleading and aggressive commercial practices in the conduct of its economic activity, (3) and required it to cease those practices, to suspend its business until it had ceased the alleged unfair commercial practices, and to refrain from changing the price for the supply of natural gas to household customers.

12.      On 11 October 2021, ANRE found that Engie, a licensed supplier of natural gas, had breached its duty of transparency laid down in Article 143(1)(k) of Law No 123/2012, and imposed on that company an administrative fine totalling RON 800 000 (approximately EUR 160 000) (‘the report at issue’), on the grounds that that supplier had, first, committed irregularities as regards the content of some offers for the supply of natural gas and, second, had not made it sufficiently clear that the price for the supply of natural gas could change over the twelve-month period on the basis of which the contracts had been concluded with its customers. Furthermore, ANRE ordered Engie to take all necessary measures, first, to notify its twelve final customers that the fixed price for natural gas to which it had committed itself would be maintained, second, to annul the amendments sent to those customers, third, to identify all final customers who had accepted standard offers at a fixed price valid for the period stated in those offers and to whom notifications and amendments had subsequently been sent increasing the price for natural gas supplied before the end of that period and, fourth, to notify those customers that the fixed price for gas would be maintained in accordance with those offers and to annul the amendments that had been sent out.

13.       In those circumstances, Engie brought an action before the Judecătoria Sectorului 4 București (Court of First Instance, District 4, Bucharest, Romania) challenging the report at issue. By judgment of 14 March 2022, that court dismissed the complaint as unfounded. Engie then lodged an appeal against that judgment before the Tribunalul București (Regional Court, Bucharest), the referring court.

14.      In the first place, that court states that it is necessary to clarify whether ANRE can require a natural gas supplier to apply a price that is different from the market price governed by Article 3(1) of Directive 2009/73/CE, (4) as a consequence of an alleged breach of the duty of transparency towards consumers.

15.      Second, that court notes that both ANRE and ANPC in essence established the same fact but characterised it differently and imposed on Engie, by separate measures, administrative fines and the same obligation to remedy the situation, namely, reversion to the price fixed in the standard offer, in the present case the price in force in April 2021. Accordingly, that court considers it necessary to determine whether the principle ne bis in idem applies to the penalties imposed by the first authority on the basis of Law No 123/2012, which transposes Directive 2009/73 into the Romanian legal system, and by the second authority on the basis of the Romanian law on consumer protection.

16.      In those circumstances, the Tribunalul București (Regional Court, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Can an alleged breach of the duty of transparency incumbent on natural gas suppliers in their dealings with household consumers, which has been implemented in national legislation and is treated under that legislation as an administrative offence (contravenția), also result in the competent national authority’s requiring a natural gas supplier to apply, in dealings with consumers, a price imposed by administrative means that takes no account of the principle of freedom to fix prices in the natural gas market, that principle being established by Article 3(1) of [Directive 2009/73/EC]?

(2)      Can the fact that a natural gas supplier has been fined both by the consumer protection authority and by the energy sector regulatory authority, by means of two separate reports of offences imposing the same measures on the supplier (duplication of administrative acts imposing measures), be regarded as a justified restriction of the principle ne bis in idem, under the provisions of Article 52 of the [Charter], or is it a breach of that principle?

Does such a combination of acts imposing the same measures on the basis of the same facts, drawn up by different authorities, comply with the principle of proportionality?’

17.      Written observations were lodged by Engie, ANRE, the Romanian and Greek Governments and by the European Commission. The same parties also presented oral argument at the hearing that was held on 24 April 2024.

IV.    Analysis

A.      Second question referred for a preliminary ruling

18.      By its second question referred for a preliminary ruling, which is the subject of this targeted Opinion, the referring court asks, in essence, whether Articles 50 and 52 of the Charter must be interpreted as meaning that the imposition of a fine on a natural gas supplier both by the energy sector regulatory authority and by the consumer protection authority on the basis of facts that are the same but penalised separately by those two authorities, on different legal bases, constitutes a justified restriction on the application of the principle ne bis in idem.

1.      Preliminary observations

(a)     Scope of application of Article 50 of the Charter

19.      It should be recalled, as a preliminary point, that the Charter’s scope, so far as action of the Member States is concerned, is defined in Article 51(1) of the Charter, according to which the provisions of the Charter are addressed to the Member States only when they are implementing EU law. (5)

20.      In the present case, it is clear from the information provided by the referring court that the two reports in question were drawn up on the basis of the Romanian law transposing Directives 2009/73 and 2005/29/EC respectively. (6) Consequently, since those national provisions constitute the implementation of EU law, they fall within the scope of the Charter within the meaning of Article 51 thereof and therefore Article 50 of the Charter is applicable in the main proceedings.

21.      It should also be noted that the principle ne bis in idem, as enshrined in Article 50 of the Charter, constitutes a fundamental principle of EU law, (7) which prohibits a duplication both of proceedings and of penalties of a criminal nature for the purposes of that article for the same acts and against the same person. (8) Limitations on the principle ne bis in idem may, however, be justified on the basis of Article 52(1) of the Charter, provided the conditions listed in that provision are fulfilled. (9)

(b)    ‘Criminal’ nature of the offence in question

22.      It should be noted, as a preliminary point, that it is clear from the case-law of the Court of Justice that three criteria are relevant as regards the assessment as to whether the proceedings and penalties concerned are criminal. The first relates to the legal classification of the offence under national law, the second to the intrinsic nature of the offence, and the third to the degree of severity of the penalty which the person concerned is liable to incur. (10)

23.      In the first place, as regards the criterion relating to the legal classification of the offence under national law, it must be held that the penalties are imposed, according to the referring court, for acts classified as ‘administrative offences’ under national law and the proceedings at the end of which those penalties are imposed are administrative proceedings.

24.      It is clear, however, from the settled case-law of the Court of Justice that Article 50 of the Charter is not limited to proceedings and penalties which are classified as ‘criminal’ by national law, but extends regardless of their classification under national law to proceedings and penalties which must be considered as criminal in nature on the basis of the two other criteria referred to in point 22 of this Opinion. (11)

25.      In the second place, in so far as the criterion relating to the nature of the offence is concerned, it must be ascertained whether the penalty at issue has a punitive purpose, without regard to the fact that it also pursues a deterrent purpose. It is of the very nature of criminal penalties that they seek both to punish and to deter unlawful conduct. (12) By contrast, a measure which merely repairs the damage caused by the offence at issue is not criminal in nature. (13)

26.      In the present case, it is clear from the information before the Court that a breach by a natural gas supplier of the duty of transparency and the duty to provide information for consumers is punishable, under the provisions of Law No 123/2012, by a financial penalty. (14) The same is true with regard to the penalties imposed by ANPC on the basis of Law No 363/2007, which provides that unfair or misleading commercial practices are also punishable by fines. (15) It follows, moreover, from the same information that, in addition to financial penalties, those two authorities adopted additional remedial measures (described by the referring court as ‘obligation(s) to remedy the situation’) requiring Engie to revert to the price fixed in its standard offers in April 2021.

27.      It is necessary in that regard to draw a distinction between, on the one hand, the administrative penalties imposed by ANPC and ANRE and, on the other hand, the additional remedial measures taken by the latter. Although it does not appear to be open to challenge, subject to the assessments which it will be for the referring court to make, that the financial penalties imposed on Engie pursue both a punitive and a preventive purpose, the same does not apply as regards the additional measures in the light of the case-law of the Court referred to in point 25 of this Opinion, according to which a measure which merely compensates for (or remedies) the damage caused by the offence concerned is not criminal in nature.

28.      Third, as regards the criterion relating to the seriousness of the penalty imposed, which must be assessed by reference to the maximum potential penalty provided for, (16) it should be noted that, according to documents in the file before the Court, two fines were imposed on Engie, one amounting to RON 800 000 (approximately EUR 160 000) in respect of the penalty imposed by ANRE, (17) and one amounting to RON 150 000 (approximately EUR 30 000) in respect of the penalty imposed by ANPC. (18)

29.      It is therefore for the referring court, on the basis of all the information before it, to determine whether the amounts of those penalties are sufficiently serious to be classified as being ‘criminal in nature’. (19)

2.      Conditions under which the principle ne bis in idem  applies

30.      Application of the principle ne bis in idem is subject to a twofold condition, namely, first, that there must be a prior final decision (the ‘bis’ condition) and, second, that the prior decision and the subsequent proceedings or decisions must concern the same facts (and the same persons) (the ‘idem’ condition). (20)

(a)    The ‘bis’ condition

31.      As regards the ‘bis’ condition, in order for a judicial decision to be regarded as having given a final ruling on the facts subject to a second set of proceedings, that decision must not only have become final but must also have been taken after a determination has been made as to the merits of the case. (21)

32.      The Cour has also stated in that regard that while it is true that the application of the principle ne bis in idem presupposes the existence of a prior final decision, it does not necessarily follow that the subsequent decisions precluded by that principle can only be those which were adopted after that prior final decision. Where a final decision exists, that principle precludes criminal proceedings in respect of the same facts from being initiated or maintained. (22)

33.      In the present case, the file before the Court shows that the decision of ANPC was definitively annulled by the competent court on grounds of lack of jurisdiction, without examining the substance of the case. (23) However, as was noted in point 31 of this Opinion, the ‘bis’ condition requires the presence of a decision that has become final after giving a ruling on the merits of the case, a condition that does not appear to be satisfied in the present case.

34.      It will, in any event, be for the referring court to determine in the light of the above considerations whether the ‘bis’ condition is in fact met before going on to examine the ‘idem’ condition.

(b)    The ‘idem’ condition

35.      As regards the ‘idem’ condition, it follows from the very wording of Article 50 of the Charter that that provision prohibits the same person from being tried or punished in criminal proceedings more than once for the same offence.

36.      According to the Court’s settled case-law, the relevant criterion for the purposes of assessing the existence of the same offence is identity of the material facts. Therefore, Article 50 of the Charter prohibits the imposition, with respect to identical facts, of several criminal penalties as a result of different proceedings brought for those purposes. (24) Moreover, it is apparent also from the case-law of the Court that the legal classification under national law of the facts and the legal interest protected are not relevant for the purposes of establishing the existence of the same offence, in so far as the scope of the protection conferred by Article 50 of the Charter cannot vary from one Member State to another. (25)

37.      While the ‘idem’ condition requires the material facts to be identical, the principle ne bis in idem is not intended to be applied where the facts in question are not identical but merely similar. Identity of the material facts must be understood to mean a set of concrete circumstances stemming from events which are, in essence, the same, in that they involve the same perpetrator and are inextricably linked together in time and space. (26)

38.      In the present case, the referring court found, first, that the two sets of proceedings at issue in the main action are directed against the same legal person, Engie, and held, second, that the facts found by ANRE and ANPC are essentially identical, namely, the applicant’s practice having been to change the price of natural gas, despite those facts being characterised differently by the two authorities.

39.      Although the Romanian Government and ANRE appear to challenge the description of the facts as given by the referring court, contending that the facts found and penalised by those authorities are not identical, (27) it should be observed that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. (28) Therefore, since the national court considers that the facts in respect of which Engie was fined by both authorities are identical within the meaning of the Court’s case-law set out in point 37 of this Opinion, that duplication constitutes a limitation of the fundamental right guaranteed by Article 50 of the Charter.

40.      In any event, it will ultimately be for the referring court to determine whether the facts in respect of which the two sets of proceedings at issue in the main action were initiated, under energy sector rules and consumer law, respectively, are identical. To that end, it is for that court to examine the facts taken into account in each of those proceedings, as well as the infringement period alleged. (29)

3.      Justification for a possible limitation of the fundamental right guaranteed by Article 50 of the Charter

41.      It should be noted that a limitation of the fundamental right guaranteed by Article 50 of the Charter may be justified only on the basis of Article 52(1) thereof. In accordance with the first sentence of that paragraph, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. According to the second sentence of Article 52(1), subject to the principle of proportionality, limitations on those rights and freedoms may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

(a)    Protection of one or more objectives of general interest

42.      As is apparent from the recent judgment in bpost, the Court held that duplication of penalties can be justified where the proceedings initiated by two different authorities pursue complementary aims relating to different aspects of the same unlawful conduct. (30) In that judgment, the Court stated, moreover, that public authorities can legitimately choose complementary legal responses to certain conduct that is harmful to society through different procedures forming a coherent whole so as to address different aspects of the social problem involved, provided that the accumulated legal responses do not represent an excessive burden for the individual concerned. (31)

43.      In the present case, it would appear that that condition is met, since while the measures ordered by ANPC were designed exclusively to put an end to unfair and misleading commercial practices with regard to consumers, the objective of the measures ordered by ANRE was to bring about price transparency on the Romanian energy market in the particular context of liberalising the sector of natural gas and hence the proper functioning of that market. (32) It would therefore appear legitimate for a Member State to punish infringements both of the sectoral rules concerning the liberalisation the market for natural gas and of the rules relating to unfair commercial practices, in order to ensure a high level of consumer protection. (33)

44.      It follows that, in principle, there is no breach of the principle ne bis in idem where the same conduct forms the subject of separate investigation procedures, based on different legal provisions pursuing separate and complementary objectives, such as consumer protection and observance of price transparency on the energy market.

45.      Furthermore, the fact that consumer protection, as an objective of general interest, may be pursued not only by national consumer protection legislation, but also, indirectly and from a different angle, by energy sector legislation, (34) does not affect the complementary nature of the objectives pursued by the two sets of rules.

46.      The above interpretation, based on the complementarity of the objectives pursued by the two sets of legislation, would appear to be supported also by the very wording of Directive 2009/73 (transposed into national law by Law No 123/2012), Annex I, paragraph 1 of which provides that the measures on consumer protection referred to in Article 3 of that directive are without prejudice to the EU rules on consumer protection.

(b)    Proportionality of, and need for, the limitation

47.      As regards compliance with the principle of proportionality, it should be noted that it requires that the duplication of proceedings and penalties provided for by national legislation does not exceed what is appropriate and necessary in order to attain the objectives legitimately pursued by that legislation. According to the Court’s settled case-law, when there is a choice between several appropriate measures, recourse must be had to the least onerous, ensuring that the disadvantages caused are not disproportionate to the aims pursued. (35)

48.      With regard to the strict necessity of such duplication of proceedings and penalties, it is necessary to assess, according to the Court’s case-law, whether there are clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication of proceedings and penalties. Furthermore, it is necessary to establish whether the two sets of proceedings have been conducted in a manner that is sufficiently coordinated and within a proximate time frame, and whether any penalty that may have been imposed in the proceedings that were first in time was taken into account in the assessment of the second penalty, meaning that the resulting burden, for the persons concerned, of such duplication is limited to what is strictly necessary and the overall penalties imposed correspond to the seriousness of the offences committed. (36)

49.      It should be noted, first of all, that the existence of two different sets of legislation applying in parallel allows the companies concerned to know in advance with a high degree of predictability the potential penalties to which they are exposed. Moreover, it is not surprising that a company which is active in the market for the generation or distribution of energy should comply with a number of sectoral rules pursuing different or complementary objectives and may, in some circumstances, be faced with various parallel penalties in respect of the same conduct, on the basis of legal measures pursuing different objectives.

50.      In addition, the file before the Court of Justice contains indications of a close connection in time between the two sets of proceedings conducted and between the decisions taken pursuant to the energy sector rules and to consumer protection law, and also of cooperation and exchanges of information between the authorities concerned (provided for specifically by the Romanian legislation), which it will also be for the referring court to determine.

51.      In the light of the above, I am of the view that Article 50, in conjunction with Article 52(1), of the Charter should be interpreted as meaning that it does not preclude a natural gas supplier being fined by means of two separate reports of offences, one drawn up by the consumer protection authority and the other by the energy sector regulatory authority, on condition that:

–        the proceedings and penalties are based on different legal provisions which have separate and complementary general interest objectives, thus justifying duplication of proceedings and penalties;

–        there are clear and precise rules making it possible to predict which acts or omissions may be subject to a duplication of proceedings and penalties and also to ensure coordination between the two competent authorities;

–        the two sets of proceedings have been conducted in a sufficiently coordinated manner and within a proximate timeframe; and

–        all the penalties imposed correspond to the seriousness of the offences.

V.      Conclusions

52.      In the light of the above considerations, I propose that the Court should answer the second question referred for a preliminary ruling by the Tribunalul Bucureşti (Regional Court, Bucharest, Romania) as follows:

Article 50, together with Article 52(1), of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it does not preclude a natural gas supplier being fined by means of two separate reports of offences, one drawn up by the consumer protection authority and the other by the energy sector regulatory authority, on condition that:

–        the proceedings and penalties are based on different legal provisions which have separate and complementary general interest objectives, thus justifying duplication of proceedings and penalties;

–        there are clear and precise rules making it possible to predict which acts or omissions may be subject to a duplication of proceedings and penalties and also to ensure coordination between the two competent authorities;

–        the two sets of proceedings have been conducted in a sufficiently coordinated manner and within a proximate timeframe; and

–        all the penalties imposed correspond to the seriousness of the offences.

1      Original language: French.

2      Monitorul Oficial al României, Part I, No 485, of 16 July 2012.

3      ANPC complained that the applicant had sent consumers successive offers containing different prices and had thereby misled them. It stated that the applicant had notified consumers of a change in the price stipulated in the initial offer after a period of only three months, although the initial price was supposed to be valid for a period of twelve months.

4      Directive 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, p. 94).

5      Judgment of 13 June 2017, Florescu and Others (C‑258/14, EU:C:2017:448, paragraph 44 and the case-law cited).

6      Specifically, Law No 123/20212 transposes Directive 2009/73 into national law, whilst Law No 363/2007 transposes Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

7      Judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 59).

8      Judgments of 20 March 2018, Menci (C‑524/15, EU:C:2018:197, paragraph 25), and of 22 March 2022, bpost (C‑117/20, ‘judgment in bpost’, EU:C:2022:202, paragraph 22 and the case-law cited).

9      Judgment of 20 March 2018, Menci (C‑524/15, EU:C:2018:197, paragraphs 41, 44, 46, 49, 53 and 55).

10      Judgment in bpost, paragraph 25 and the case-law cited. See also ECtHR, 8 June 1976, Engel and Others v. The Netherlands (EC:ECHR:1976:0608JUD000510071, § 82).

11      Judgment in bpost, paragraph 26.

12      Judgments of 20 March 2018, Menci (C‑524/15, EU:C:2018:197, paragraph 31) and of 14 September 2023, Volkswagen Group Italia and Volkswagen Aktiengesellschaft (C‑27/22, EU:C:2023:663, paragraph 49).

13      Judgment of 20 March 2018, Garlsson Real Estate and Others (C‑537/16, EU:C:2018:193, paragraph 33).

14      Specifically, a breach of the duty laid down in Article 143(1)(k) of Law No 123/2012 constitutes an administrative offence, punishable by a fine of between RON 20 000 and RON 400 000 (approximately between EUR 4 057 and EUR 81 147).

15      The order for reference does not contain any reference to the amount of the fines provided for by the applicable law. Similarly, the observations of the parties do not provide any additional information on the range of potential fines.

16      Judgment of 4 May 2023, MV – 98 (C‑97/21, EU:C:2023:371, paragraph 46).

17      It should be noted that the amount of that fine takes account of more than one administrative offence found by ANRE.

18      Although the order for reference does not mention the imposition of a fine on Engie on the basis of the abovementioned national legislation, it is clear from the written observations of both the applicant and the Romanian Government that, in addition to the obligation imposed on Engie to revert to the initial price agreed with the customers concerned, ANPC imposed on Engie a fine of RON 150 000 (approximately EUR 30 000).

19      I note also that, according to the case-law of the European Court of Human Rights, the low severity of an administrative fine is not in itself sufficient for it not to be classified as a ‘criminal penalty’ (ECtHR, 6 October 2020, Pfenning Distributie S.R.L v. Romania, (CE:ECHR:2020:1006JUD007588213, § 27). See, also, ECtHR, 8 July 2019, Mihalache v. Romania (CE:ECHR:2019:0708JUD005401210, § 62).

20      Judgment in bpost, paragraph 28.

21      Judgment in bpost, paragraph 29.

22      Judgment of 14 September 2023, Volkswagen Group Italia and Volkswagen Aktiengesellschaft (C‑27/22, EU:C:2023:663, paragraph 59).

23      It should be pointed out that, although that information does not appear in the order for reference, it was provided by the Romanian Government in its written observations and was subsequently confirmed at the oral procedure, without being challenged by the other parties attending the hearing.

24      Judgment in bpost, paragraph 33.

25      Judgment in bpost, paragraph 34 and the case-law cited.

26      Judgment in bpost, paragraphs 31, 33, 36 and 37.

27      According to those parties, ANRE fined Engie for breaching the duty of transparency when establishing the standard offer, while ANPC for its part fined it for misleading or aggressive commercial practices consisting in sending successive notifications concerning price changes.

28      Judgment of 11 January 2024, Societatea Civilă Profesională de Avocaţi AB & CD (C‑252/22, EU:C:2024:13, paragraph 38).

29      See, to that effect, judgment in bpost, paragraph 38.

30      See, to that effect, judgment in bpost, paragraph 50.

31      Judgment in bpost, paragraph 49.

32      I note, in so far as this might be relevant, that observance of price transparency is only an indirect objective of consumer protection.

33      See, by analogy, judgment in bpost, paragraph 47.

34      While consumer protection is referred to ‘directly’ as a principal objective of consumer law, it is referred to only ‘indirectly’ in the context of energy sector legislation, which is designed principally to ensure the proper functioning of the market concerned.

35      Judgment of 20 March 2018, Menci (C‑524/15, EU:C:2018:197, paragraph 46 and the case-law cited).

36      Judgment in bpost, paragraph 51.