Provisional text
OPINION OF ADVOCATE GENERAL
BIONDI
delivered on 11 December 2025 (1)
Case C‑468/24
SR
v
Netz Niederösterreich GmbH
(Request for a preliminary ruling from the Landesgericht St. Pölten (Regional Court, St. Pölten, Austria))
( Reference for a preliminary ruling – Energy – Supply of electricity – Measurement tools – Smart meters – Consumer’s right to refuse – Security of data transmitted by smart meters )
I. Regulatory context
A. European Union law
1. Article 20 of Directive (EU) 2019/944, (2) entitled ‘Functionalities of smart metering systems’, states as follows in subparagraphs (b) and (c):
‘Where the deployment of smart metering systems is positively assessed as a result of the cost-benefit assessment referred to in Article 19(2), or where smart metering systems are systematically deployed after 4 July 2019, Member States shall deploy smart metering systems in accordance with European standards, Annex II and the following requirements:
…
(b) the security of the smart metering systems and data communication shall comply with relevant Union security rules, having due regard of the best available techniques for ensuring the highest level of cybersecurity protection while bearing in mind the costs and the principle of proportionality;
(c) the privacy of final customers and the protection of their data shall comply with relevant Union data protection and privacy rules;
…’.
2. Article 21 of Directive 2019/944, entitled ‘Entitlement to a smart meter’, establishes as follows in point (a) of paragraph 1:
‘1. Where the deployment of smart metering systems has been negatively assessed as a result of the cost-benefit assessment referred to in Article 19(2) and where smart metering systems are not systematically deployed, Member States shall ensure that every final customer is entitled on request, while bearing the associated costs, to have installed or, where applicable, to have upgraded, under fair, reasonable and cost-effective conditions, a smart meter that:
(a) is equipped, where technically feasible, with the functionalities referred to in Article 20, or with a minimum set of functionalities to be defined and published by Member States at national level in accordance with Annex II;
…’.
3. Article 22 of that directive, entitled ‘Conventional meters’, provides as follows in paragraph 1:
‘1. Where final customers do not have smart meters, Member States shall ensure that final customers are provided with individual conventional meters that accurately measure their actual consumption.’
4. Article 23 of that directive, entitled ‘Data management’, provides as follows in paragraph 3:
‘3. The rules on access to data and data storage for the purpose of this Directive shall comply with the relevant Union law.
The processing of personal data within the framework of this Directive shall be carried out in accordance with Regulation (EU) 2016/679.’
5. Article 5 of Directive 2002/58/EC, (3) entitled ‘Confidentiality of the communications’, establishes as follows in paragraph 3:
‘3. Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia, about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service.’
6. Article 5 of Regulation 2016/679, (4) entitled ‘Principles relating to processing of personal data’, states as follows in point (f) of paragraph 1:
‘1. Personal data shall be:
…
(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (“integrity and confidentiality”).’
7. Article 13 of Regulation 2016/679, entitled ‘Information to be provided where personal data are collected from the data subject’, provides as follows in paragraph 1:
‘1. Where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information:
(a) the identity and the contact details of the controller and, where applicable, of the controller’s representative;
(b) the contact details of the data protection officer, where applicable;
(c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;
…’
8. Article 32 of that Regulation, entitled ‘Security of processing’, provides as follows in paragraph 2:
‘2. In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.’
B. Austrian law
9. Paragraph 83(3) of the Elektrizitätswirtschafts- und -organisationsgesetz (ElWOG) (5) (Law on the organisation of the electricity sector; ‘the ElWOG’), states as follows:
‘3. The default setting for the smart meter display shall only show the current meter reading. If a consumer wishes to verify additional data that are stored in the device and relevant for billing, such consumer’s smart meter shall be configured so as to enable verification of such data at the smart meter display. Such configuration operation shall be free of charge and shall not cause disproportionate efforts for the consumer.
…’
10. Paragraph 84a(1) of the same law provides as follows:
‘1. System operators shall only retrieve and use quarter-hourly consumption data if the final customer explicitly agrees or if the data are necessary to fulfil duties that arise from the customer’s having chosen a supply contract based on quarter-hourly readings. In addition, system operators may retrieve such data from smart meters without consumer agreement in justified individual local cases where this is necessary to maintain secure and efficient grid operation. The relating data shall be deleted immediately once they are no longer needed to fulfil this task. … Where consumers have not consented to quarter-hourly values being retrieved, they shall be informed of such retrieval without delay.’
11. Paragraph 1 of the Intelligente Messgeräte-Einführungsverordnung (6) (Regulation on the introduction of smart metering devices; ‘IME-VO’) provides as follows:
‘1. Every system operator shall:
1). …
2). within the limits of technical feasibility, equip at least 95 percent of the metering points connected to its grid with smart meters by the end of 2024 (point 31 of Paragraph 7(1) of the ElWOG 2010) in accordance with the provisions of the … [IMA-VO], (7) whereby grid-bound transmission is to be considered.
…
4. System operators shall inform final customers without delay of the installation of a smart meter and the concomitant framework conditions. …
…
6. If a final customer refuses measurements using a smart meter, the system operator shall fulfil that wish. In such a case, the system operator shall configure smart meters to be installed or already installed in such a way that no monthly, daily or quarter-hourly values are stored and transmitted and the shutdown function and the power limit function are deactivated, whereby the respective configuration of the functions must be visible for final customers on the meter. A reading and transmission of the meter readings required for invoicing purposes or for consumer limits and, to the extent that the meter is technically in a position to do so, of the highest quarter-hourly average load (performance) within a calendar year must be possible. Smart meters thus configured are counted against the target obligations laid down in subsection 1, to the extent that they fulfil the requirements of the [IMA-VO] when activated or programmed to that effect; this is to be done without delay at the request of the final customer.
…’
II. The dispute in the main proceedings and the questions referred for a preliminary ruling
12. Netz Niederösterreich GmbH, the defendant in the appeal proceedings, is an electricity network operator in Austria. SR, the applicant in the appeal proceedings, purchases electricity from a third-party company through the defendant’s network.
13. The applicant had an analogue electricity meter, but its calibration expired in December 2023. It is apparent from the request for a preliminary ruling that that meter must be replaced by a smart metering system that complies with legal requirements (‘the smart meter’).
14. As the applicant objected to the removal of the previous analogue meter, the defendant lodged an appeal with the Bezirksgericht Tulln (District Court, Tulln, Austria) so as to proceed with the removal of the previous meter. The applicant filed an appeal with the Landgericht St. Pölten (Regional Court, St. Pölten), the referring court, against the judgment in the main proceedings.
15. The referring court has decided to stay the proceedings and to refer six questions to the Court of Justice for a preliminary ruling.
‘(1) Must Article 22 of [Directive 2019/944], read in conjunction with Annex II of that directive, be interpreted as meaning that a system operator is required to [take into consideration] a final customer’s wish not to receive a smart meter, and has an obligation in such a case to provide the final customer with a conventional meter instead of a smart meter?
(2) Must Article 2(1) of Directive 2014/32/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of measuring instruments [(Directive 2014/32/UE on measuring instruments) (8)], which defines in more detail a “measuring instrument” within the meaning of the instrument-specific Annexes III to XII (active electrical energy meters [MI-003]), read in conjunction with Article 20(b) and (c) and Article 23(3) of [Directive 2019/944], be interpreted in such a way that it runs counter to a provision of national law (point 31 of Paragraph 7(1) of the Elektrizitätswirtschafts- und organisationsgesetz 2010 (Law on the organisation of the electricity sector of 2010) in the version in BGBl I No 17/2021, ‘the ElWOG’), which does not lay down any specific data protection requirements in relation to meters?
(3) Must Article 20(b) and (c), Article 21(1)(a) and Article 23(3) of [Directive 2019/944] also take into consideration Article 6(1) of Directive [85/374/EEC (the Product Liability Directive) (9), as amended by Directive 1999/34/EC(10)]?
(4) Must Article 5(3) of Directive 2002/58/EC … be interpreted as meaning that the term ‘electronic communications network’ is also applicable to an electricity system via which data (consumption data, metadata, personal identity) are transmitted for the purposes of Article 20(b) and (c), Article 21(1)(a) and Article 23(3) of [Directive 2019/944]?
(5) Must [Article] 5(1)(f), Article 13 and Article 32(2) of [Regulation 2016/679] and Article 7, Article 8(1) and (2) of the [Charter of Fundamental Rights of the European Union] be interpreted as contradicting a national provision (Paragraph 1(6) of the […] IME-VO’), according to which only the respective configuration of the reading interval must be visible for the final customer, but not whether the system operator recognised a ‘justified individual case’ (Paragraph 84a(1) of the ElWOG) and has retrieved data of the final customer before the set interval?
(6) Having regard to Article 52(3) of the Charter, the fifth recital thereof and the explanations relating to Article 7 of the Charter, must the case-law of the European Court of Human Rights on Article 8 of the European Convention on Human Rights [be] taken into account for the purpose of interpreting Article 20(b) and (c), Article 21(1)(a) and Article 23(3) of [Directive 2019/944]?’
16. At the request of the Court, this Opinion deals only with the fourth and fifth questions referred for a preliminary ruling.
17. The parties to the main proceedings, the Austrian and Finnish Governments and the Commission, submitted written observations and were heard at the hearing on 24 September 2025.
III. Analysis
Preliminary remarks
Energy efficiency and data protection
18. The case falls within a specific regulatory and technological context, in which the digitisation of the energy sector is considered an essential element for achieving the objectives of efficiency and environmental sustainability enshrined in EU law.
19. In particular, Directive 2019/944 on common rules for the internal market for electricity encourages Member States to introduce smart metering systems (11) (‘smart meters’) to enable consumers to access real-time or near real-time information on their energy consumption and to facilitate active participation in the energy transition. (12)
20. The EU legislature also intends to make consumers more responsible for their energy consumption, so that they can participate more actively in the market, while preserving their freedom of choice of supplier. (13) In order for consumers to be involved, technologies such as smart metering systems are required. Among other things, these systems enable operators to gain a better overview of their networks and reduce operating and maintenance costs. (14) In this regard, Directive 2019/944 also lays down rights and obligations for distribution system operators. (15)
21. The smart metering system involves the collection of various types of data, from consumption data to personal data. For this reason, the EU legislature has emphasised the importance of personal data being processed in accordance with the GDPR. (16)
22. It is in this context that the case in question provides an opportunity to examine how Member States manage the relationship between energy efficiency and data protection.
Admissibility
23. The defendant and the Austrian Government are contesting the admissibility of the fourth and fifth questions referred for a preliminary ruling. They argue that these preliminary questions are hypothetical in nature, as they concern the scenario in which the smart meter is installed, whereas the main proceedings concern the removal of the previous analogue meter.
24. It must be borne in mind that, in accordance with settled case-law, ‘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’. (17) This presumption can only be rebutted in exceptional circumstances, where it is clear that the question raised has no connection with the actual facts of the case or the subject matter of the dispute in the main proceedings, or that the Court does not have before it the factual or legal information necessary to give a useful answer. (18)
25. Furthermore, the spirit of cooperation underpinning the preliminary ruling mechanism implies that it is for the national court to assess, on the basis of the particular circumstances of the case, both the need for a preliminary ruling and the relevance of the questions referred. Where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. (19)
26. In the present case, it is apparent from the case file that the referring court is seeking to clarify the scope of certain provisions of EU law in order to interpret national law in a manner consistent with EU law. That court has justified the relevance of the questions in relation to the subject matter of the dispute, explaining how their resolution could affect the outcome of the main proceedings.
27. It follows that the questions raised cannot be considered purely hypothetical.
A. The fourth question referred for a preliminary ruling
28. By its fourth question, the referring court is asking, in essence, whether the requirements for the storage of or access to information stored in terminal equipment for an electronic communications network, referred to in Article 5(3) of Directive 2002/58, can apply to an electricity network through which personal data may be transmitted for the purposes of Article 20(b) and (c), Article 21(1)(a) and Article 23(3) of Directive 2019/944.
29. First of all, I would like to point out that, in my view, Article 21(1) of Directive 2019/944, is not relevant in this case, as it regulates situations where the introduction of smart metering systems has been assessed negatively in a given Member State. It is apparent from the case file that in Austria the introduction of such systems was assessed positively following a cost-benefit analysis, (20) on the basis of which the IME-VO regulation was then adopted.
30. That said, in order to resolve this preliminary question, it is necessary, in essence, to ascertain whether the concept of ‘electricity network’ can be included within that of ‘electronic communications network’. (21)
31. In this regard, it should be noted that the requirements laid down in Article 5(3) of Directive 2002/58 concern only information stored in the terminal equipment of a subscriber or user. (22)
32. It should also be noted that Article 1(1)(a) of Directive 2008/63/EC (23) on telecommunications terminal equipment defines terminal equipment as ‘equipment directly or indirectly connected to the interface of a public telecommunications network to send, process or receive information’. (24)
33. It is true that Implementing Regulation (EU) 2023/1162 on interoperability requirements (25) stipulates that ‘given that smart meters qualify as terminal equipment, [Directive 2002/58] applies as well … including Article 5(3)’. (26) However, that regulation does not specify whether the classification of smart meters as terminal equipment should be considered relevant in the case of a public electricity network. Interpreting smart meters as terminal equipment regardless of whether the electricity network is public or otherwise, could, in my view, be incompatible with the other provisions of EU law mentioned above.
34. On the basis of these considerations, it can be inferred that, in order for Article 5(3) of Directive 2002/58 to apply in the present case, two conditions must essentially be met: (a) the smart meter must be owned by the consumer, and (b) it must be connected to a public network, (27) provided that the smart meter can be considered terminal equipment.
35. During the hearing, it emerged that in Austria the electricity grid is not public and that smart meters are not owned by consumers.
36. Moreover, as specified by the Austrian Government, the main purpose of the electricity network in this case is to supply electricity and not the conveyance of signals, as is the case with an electronic communication network. (28)
37. It follows that, in the case in question, the two conditions set out above and required for the storage requirements referred to in Article 5(3) of Directive 2002/58 to be considered applicable cannot be met. However, it is for the referring court to verify that those conditions are satisfied in the present case.
38. Therefore, subject to verification by the referring court, Article 5(3) of Directive 2002/58 would not apply in cases where the meter is not owned by the consumer and is connected to a private network.
B. The fifth question referred for a preliminary ruling
39. By its fifth question, the referring court is asking whether Article 5(1)(f), Article 13 and Article 32(2) of the GDPR and Article 7, Article 8(1) and (2) of the Charter contradict the Austrian provision (in the present case, Article 1(6) of the IME-VO and Paragraph 84a(1) of the ElWOG) according to which only the configuration of the reading interval should be visible for the customer, but not whether the system operator recognised a ‘justified individual case’ and has retrieved data of the final customer before the set interval.
40. First, it should be noted that both the defendant and the Austrian Government emphasised at the hearing that Paragraph 84a(1) of the ElWOG on access to data in smart meters by operators in justified individual cases does not apply if the meter is set to ‘opt-out’ mode. (29) This is because energy consumption values are not recorded, making it impossible to consult the values in the case referred to in Paragraph 84a of the ElWOG.
41. That said, I will analyse the fifth question referred by examining whether the provisions of the GDPR contradict Paragraph 84a(1) of the ElWOG.
42. First, it should be noted that, as stated in recital 91 of Directive 2019/944, ‘this Directive respects the fundamental rights and observes the principles recognised in the Charter’. And that ‘it is essential that any processing of personal data under this Directive comply with [the GDPR] …’. (30)
43. According to Article 23 of Directive 2019/944, entitled ‘Data management’, Member States are required to specify the rules governing access to end-customer data by authorised entities and to organise data management in such a way that access to and exchange of data is efficient and secure, while ensuring data protection and security.
44. With regard to Article 5(1)(f), Article 13 and Article 32(2) of the GDPR, for which an interpretation is sought by the referring court in the fifth question, I am not entirely convinced that Article 5(1)(f) and Article 32(2) are relevant in the present case.
45. In fact, Article 5(1)(f) of the GDPR establishes the principles of integrity and confidentiality according to which the data controller is required to implement measures to ensure a level of security appropriate to the risk. (31) Article 32 of the GDPR specifies the data controller’s obligations with regard to the security of processing. Paragraph 2 of that article states that, in assessing the appropriate level of security, account is to be taken ‘of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data’. (32)
46. In the present case, the question referred by the referring court concerns the obligation on the operator to inform the consumer when consulting data in a ‘justified individual case’. For this reason, given the lack of relevance, in my view, of Article 5(1)(f) and Article 32(2) of the GDPR in the case in question, I will focus my analysis on Article 13.
47. Thus, the abovementioned article lists the information that the data controller (the operator, in this case) must provide to the data subject (the consumer), ‘at the time when personal data are obtained’. The information to be provided also includes the purposes of the processing for which the personal data are intended as well as the legal basis for the processing. (33) However, in accordance with Article 13(4) of the GDPR, the above obligation is excluded where and in so far as the data subject already has the information.
48. With regard to Austrian legislation, Paragraph 84a(1) of the ElWOG expressly lays down the purpose for which network operators may access such data via the smart meter in ‘justified individual’ cases. The purpose is to safeguard the secure and efficient operation of the network where this is essential. That provision also states that ‘the relating data shall be deleted immediately once they are no longer needed to fulfil this task. … Where consumers have not consented to quarter-hourly values being retrieved, they shall be informed of such retrieval without delay’.
49. As demonstrated by the defendant in its observations, Paragraph 84a(1) of the ElWOG is reproduced in the general terms and conditions for access to the Netz Niederösterreich distribution network (34) which can be considered to be reproduced in the contract concluded with the consumer at the time of installation of the smart meter or prior to that moment.
50. In my view, Paragraph 84a(1) of the ElWOG establishes the obligation laid down in Article 23 of Directive 2019/944 to manage data in order to ensure efficient and secure access to it and exchange of it.
51. Indeed, Paragraph 84a expressly stipulates the purpose for which access would take place, and stipulates that data shall be deleted when they are no longer necessary. In this regard, Paragraph 84a ensures that access to and exchange of data are secure. It also guarantees the protection of the data, as it stipulates that the consumer must be informed promptly if consent has not been given.
52. It follows that Austrian legislation – in this case Paragraph 84a(1) of the ElWOG – does not conflict with the GDPR, provided that the consumer is informed of the specific purpose referred to in Paragraph 84a(1). For the same reasons, I am of the opinion that the Austrian legislation does not conflict with Article 7 and Article 8(1) and (2) of the Charter.
53. As it became apparent from the discussions at the hearing, I am aware that consumers may have concerns about the effective protection of personal data, especially when they are transmitted via devices such as energy meters. In this regard, I believe it is worth mentioning that the EU legislature has recently strengthened the level of protection of consumers’ personal data through the adoption of Regulation (EU) 2023/2854, (35) which, although it applies from 12 September 2025, further guarantees users of ‘connected products’ (36) timely access to the data generated by such devices.
54. In conclusion, I consider that Article 13 of the GDPR, Article 7 and Article 8(1) and (2) of the Charter do not contradict national legislation according to which only the respective configuration of the reading interval must be visible for the final customer, but not if the system operator has recognised a ‘justified individual case’ (Paragraph 84a(1) of the ElWOG) and has retrieved data of the final customer before the set interval, provided that the consumer is also informed in advance of this specific purpose.
IV. Conclusion
55. On the basis of all the foregoing considerations, I suggest that the Court reply as follows to the questions referred for a preliminary ruling by the Landesgericht St. Pölten (Regional Court, St. Pölten, Austria):
Article 5(3) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector should be interpreted as meaning that:
the concept of ‘electronic communications network’ does not apply to an electricity network via which data (consumption data, metadata, personal identity) are transmitted for the purposes of Article 20(b) and (c) and Article 23(3) of Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU, where the electricity network is not public and the smart meter is not owned by the consumer.
Article 13 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, read in the light of Article 7 and Article 8(1) and (2) of the Charter of Fundamental Rights of the European Union, should be interpreted as meaning that:
it does not contradict national legislation according to which only the respective configuration of the reading interval must be visible for the final customer, but not if the system operator has recognised a ‘justified individual case’ and has retrieved data of the final customer before the set interval, provided that the consumer is also informed in advance of this specific purpose.
1 Original language: Italian.
2 Directive of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (OJ 2019 L 158, p. 125).
3 Directive of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009, L 337, p. 11).
4 Regulation of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1) (‘the GDPR’).
5 Bundesgesetz, mit dem die Organisation auf dem Gebiet der Elektrizitätswirtschaft neu geregelt wird (Elektrizitätswirtschafts- und -organisationsgesetz 2010 – ElWOG 2010). BGBl. I Nr. 110/2010.
6 Verordnung des Bundesministers für Wirtschaft, Familie und Jugend, mit der die Einführung intelligenter Messgeräte festgelegt wird (Intelligente Messgeräte-Einführungsverordnung – IME-VO). BGBl. II Nr. 138/2012.
7 Verordnung der E-Control, mit der die Anforderungen an intelligente Messgeräte bestimmt werden (Intelligente Messgeräte-AnforderungsVO 2011 – IMA-VO 2011). BGBl. II Nr. 339/2011, ‘the IMA-VO’.
8 OJ 2014, L 96, p. 149.
9 Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985, L 210, p. 29).
10 Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999 amending Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1999, L 141, p. 20)
11 Article 2(23) of Directive 2019/944 defines ‘smart metering system’ as an ‘electronic system that is capable of measuring electricity fed into the grid or electricity consumed from the grid, providing more information than a conventional meter, and that is capable of transmitting and receiving data for information, monitoring and control purposes, using a form of electronic communication’. The smart metering system differs from a ‘conventional meter’ in that, as defined in Article 2(22) of the same directive, [a conventional meter] is ‘an analogue or electronic meter with no capability to both transmit and receive data’.
12 See especially recitals 10, 49, 52 and 54 of Directive 2019/944.
13 See recitals 11 and 12 of Directive 2019/944.
14 See recital 52 of Directive 2019/944.
15 See recital 45 of Directive 2019/944.
16 See recital 91 of Directive 2019/944.
17 See judgment of 17 May 2023, BK and ZhP (Partial stay of the main proceedings) (C‑176/22, EU:C:2023:416, paragraph 19 and the case-law cited).
18 See judgment of 22 December 2008, Régie Networks (C‑333/07, EU:C:2008:764, paragraph 46).
19 See judgment of 25 June 2024, Ilva and Others (C‑626/22, EU:C:2024:542, paragraph 46 and the case-law cited).
20 PWC Austria, for the regulatory authority for electrical energy E-Control, Studie zur Analyse der Kosten Nutzen einer österreichweiten Einführung von Smart Metering, June 2010, which can be viewed at: https://www.e-control.at/documents/1785851/1811528/pwc-austria-smart-metering-e-control-06-2010.pdf/b68eb019-b6bf-444d-b4fb-95f3d05727ca?t=1413906565472b68eb019-b6bf-444d-b4fb-95f3d05727ca.
21 The concept of ‘electronic communications network’ is derived from Article 2(1) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36).
22 Italics added. Incidentally, as stated by the Court in its judgment of 1 October 2019, Planet49 (C‑673/17, EU:C:2019:801), the protection provided for in Article 5(3) applies to any information stored in terminal equipment, regardless of whether it is personal data (paragraphs 68-70).
23 Commission Directive of 20 June 2008 on competition in the markets in telecommunications terminal equipment (OJ 2008 L 162, p. 20).
24 Italics added.
25 Commission Implementing Regulation of 6 June 2023 on interoperability requirements and non-discriminatory and transparent procedures for access to metering and consumption data (OJ 2023 L 154, p. 10).
26 See recital 16 of Implementing Regulation 2023/1162.
27 Article 2(8) of Directive 2018/1972 defines ‘public electronic communications network’ as ‘an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services which support the transfer of information between network termination points’.
28 See Article 2(1) of Directive 2018/1972.
29 For the sake of completeness, it is apparent from the case-file that consumption values can be transmitted using one of three different configurations: ‘standard’, ‘opt-in’ or ‘opt-out’. The ‘standard’ configuration transmits daily consumption values. The ‘opt-in’ configuration involves the transmission of consumption values at 15-minute intervals, in addition to daily consumption values. On the other hand, the ‘opt-out’ configuration is the opposite of the other two configurations, as meters set to this configuration only store and transmit annual consumption. If the ‘opt-out’ configuration is activated, the meter will cease to measure electricity as a smart meter and will instead function as a digital meter.
30 See also Article 23(3) of Directive 2019/944.
31 See judgment of 21 December 2023, Krankenversicherung Nordrhein (C‑667/21, EU:C:2023:1022, paragraph 68).
32 See judgment of 25 January 2024, MediaMarktSaturn (C‑687/21, EU:C:2024:72, paragraph 37).
33 See also judgment of 11 July 2024, Meta Platforms Ireland (Representative action) (C‑757/22, EU:C:2024:598, paragraph 54).
34 As mentioned by the Netz Niederösterreich GmbH in its observations before the Court, point XIV of the general terms and conditions for access to the Netz Niederösterreich GmbH distribution network [Allgemeine Bedingungen für den Zugang zum Verteilernetz der Netz Niederösterreich GmbH] expressly states that ‘in order to ensure the safe and efficient operation of the network, in justified cases, readings may be taken every quarter of an hour even without the consent of the network customer, in which case the customer shall be informed promptly. In addition, quarter-hourly values may be recorded at the request of the BMWFW [Bundesministerium für Wissenschaft, Forschung und Wirtschaft] or the regulatory authority for the purposes of Paragraph 84a(1) of the ElWOG 2010, provided that they are immediately aggregated after reading and then anonymised’. Moreover, the Netz Niederösterreich GmbH submits that the contract concluded with the consumer complies with those general terms and conditions that were authorised by the regulatory authority for electrical energy E-Control on 18 June 2014.
35 Regulation of the European Parliament and of the Council of 13 December 2023 on harmonised rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828 (OJ L, 2023/2854).
36 See Article 2(5) of Regulation 2023/2854 for the definition of ‘connected product’.