Background
SR, an Austrian consumer, refused to allow Netz Niederösterreich GmbH, the electricity network operator for Lower Austria, to replace the conventional mechanical electricity meter at her home with a smart meter. The conventional meter’s calibration expired on 31 December 2023. Netz Niederösterreich sought to install a smart meter pursuant to Austrian law, specifically the ElWOG (Electricity Industry and Organization Act 2010) and the IME-VO (Smart Meter Introduction Ordinance), which implement Directive (EU) 2019/944 on common rules for the internal electricity market.
SR opposed the replacement, alleging that smart meters pose electromagnetic pollution risks and violate the General Data Protection Regulation (GDPR). She argued that smart meters do not guarantee secure data transmission, that data are transmitted partly unencrypted, that neighboring meters’ data could be accessed, and that the default configuration does not include an “opt-out” mode. The Bezirksgericht Tulln (District Court of Tulln) granted Netz Niederösterreich’s request to compel SR to accept the replacement. SR appealed to the Landesgericht St. Pölten (Regional Court of Sankt Pölten), which referred six questions to the Court of Justice for a preliminary ruling under Article 267 TFEU.
The Court’s Holding
The Court answered questions 1, 2, and 4 on the merits and declared questions 3, 5, and 6 inadmissible. On the first question, the Court held that Articles 19, 21, and 22 of Directive 2019/944, read in combination with Annex II, must be interpreted as meaning that a network operator is not required to comply with a final customer’s wish not to receive a smart meter and is not required, in such a case, to provide that customer with a conventional meter. The Court reasoned that the deployment of smart metering systems is strongly encouraged by the EU legislature, and while customers have a right to a conventional meter if no smart meter has been provided, they do not have a right to oppose smart meter installation or to retain a conventional meter in all cases.
On the second question, the Court held that Article 2(1) of Directive 2014/32 on measuring instruments, read with Article 20(1)(b) and (c) and Article 23(3) of Directive 2019/944, does not preclude national legislation that defines “smart meter” without including specific data security requirements in that definition, provided that other provisions of the national framework implement the data security and protection requirements set out in those directives. The Court noted that while both directives contain data security requirements, these need not be repeated in the definition itself if they are implemented elsewhere in national law.
On the fourth question, the Court held that Article 5(3) of Directive 2002/58 on privacy and electronic communications does not apply to an electricity network through which personal data may be transmitted. The Court reasoned that an electricity network with data transmission functionality, established by a network operator to control and manage the network and measure consumption, is not a “public electronic communications network” within the meaning of the directive, because its main purpose is to distribute energy, not to provide publicly available electronic communications services. The Court also held that a final customer whose consumption is measured by a smart meter is not a “subscriber” or “user” of an electronic communications service in this context.
The Court declared the third question inadmissible because it concerned the interpretation of Article 6(1) of Directive 85/374 on liability for defective products, but the main dispute did not concern producer liability or any alleged defect in the meters. The fifth question was declared inadmissible because it concerned access to consumption data in “justified special cases” under Austrian law, but the main dispute did not involve such access, making the question hypothetical. The sixth question was declared inadmissible because the referring court mentioned ECtHR case law only abstractly without citing relevant judgments or explaining why it was necessary to consider such case law.
Key Takeaways
- Network operators are not required to comply with a customer’s refusal of a smart meter or to provide a conventional meter instead; the deployment of smart meters is strongly encouraged under EU law.
- National legislation defining “smart meter” need not include specific data security requirements in the definition itself, provided other provisions implement the data security and protection requirements of EU law.
- Article 5(3) of the ePrivacy Directive does not apply to electricity networks used for smart meter data transmission, as these are not public electronic communications networks.
- The Court will declare preliminary questions inadmissible when they concern matters not at issue in the main dispute, are hypothetical, or lack sufficient explanation of their relevance.
Why It Matters
This judgment clarifies the balance between the EU’s strong policy encouragement of smart meter deployment and individual consumer objections. It establishes that consumers do not have a right under EU law to refuse smart meter installation, leaving the modalities of deployment to Member States. The ruling also delineates the scope of the ePrivacy Directive, confirming that it does not apply to electricity networks used for smart metering, while emphasizing that data protection requirements under the GDPR and sector-specific legislation must still be implemented in national frameworks.
The decision provides guidance to national courts and regulators on the interpretation of the 2019 Electricity Directive and the Measuring Instruments Directive, particularly regarding the flexibility Member States have in transposing definitions and implementing data security requirements. It also illustrates the Court’s approach to admissibility of preliminary questions, emphasizing the need for a clear connection between the questions referred and the actual dispute.