ECLI:EU:C:2026:776

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OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

Delivered on 17 September 2026 (1)

Case C‑556/25

Haluška, s. r. o.

Okresný úrad Ružomberok, katastrálny odbor

(Request for a preliminary ruling from the Najvyšší správny súd Slovenskej republiky (Supreme Court of the Slovak Republic))

( Reference for a preliminary ruling – Energy – Authorisation procedures for the small-scale generation of hydroelectric energy – Exclusion of small-scale producers from applying for the land registration of legal easements provided for in national law – Application of EU law to national legislation – Prohibition of discrimination )

1. In Slovakia, electricity producers may benefit, in principle, from a legal easement (2) over land owned by third parties when, according to the national law that transposed Directive (EU) 2019/944, (3) they hold an authorisation to conduct their activity.

2. However, that same law appears to deprive small-scale electricity producers of that possibility. The preliminary ruling proceedings concern whether such an exclusion is compatible with EU law.

3. Specifically, the Court of Justice is called upon to interpret Article 8 of Directive 2019/944 and its relationship with the general principle of non-discrimination established in Article 9 thereof.

I. Legal framework

A. European Union Law. Directive 2019/944

4. Article 3 (‘Competitive, consumer-centred, flexible and non-discriminatory electricity markets’) states that:

‘…

4. Member States shall ensure a level playing field where electricity undertakings are subject to transparent, proportionate and non-discriminatory rules, fees and treatment, in particular with respect to balancing responsibility, access to wholesale markets, access to data, switching processes and billing regimes and, where applicable, licensing.

…’

5. According to Article 8 (‘Authorisation procedure for new capacity’):

‘1. For the construction of new generating capacity, Member States shall adopt an authorisation procedure, which shall be conducted in accordance with objective, transparent and non-discriminatory criteria.

…

3. Member States shall ensure that specific, simplified and streamlined authorisation procedures exist for small decentralised and/or distributed generation, which take into account their limited size and potential impact.

Member States may set guidelines for that specific authorisation procedure. Regulatory authorities or other competent national authorities, including planning authorities, shall review those guidelines and may recommend amendments thereto.

…’

6. Article 9 (‘Public service obligations’) establishes that:

‘1. Without prejudice to paragraph 2, Member States shall ensure, on the basis of their institutional organisation and with due regard to the principle of subsidiarity, that electricity undertakings operate in accordance with the principles of this Directive with a view to achieving a competitive, secure and environmentally sustainable market for electricity, and shall not discriminate between those undertakings as regards either rights or obligations.

…’

7. According to Article 73, points (a) to (i) and (k) of Article 8(2) and Article 8(3) and (4) shall apply from 1 January 2021.

B. National law

1. The Energy Law (4)

8. Paragraph 6 regulates the permit required for conducting ‘activities in the energy sector’ as follows:

– According to Paragraph 6(1), activities in the energy sector may only be carried out on the basis of and in accordance with an authorisation or a certificate of compliance with the duty of notification.

– In accordance with Paragraph 6(2), an authorisation shall be required, in the case of activities other than those referred to in subparagraph 4, inter alia, for the generation, transmission, distribution and supply of electricity.

– Pursuant to Paragraph 6(4)(a), an authorisation shall not be required for the generation and supply of electricity using electricity generation equipment with a total installed capacity up to and including 1 MW.

– According to Paragraph 6(5), persons carrying out activities for which an authorisation is not required pursuant to Paragraph 4 shall be subject to the following duty of notification: within 30 days of the commencement, cessation or alteration of said activities, they shall be obliged to notify the authority thereof. The certificate of compliance with the duty of notification issued by the authority shall constitute evidence that the person is entitled to carry out the relevant activity.

9. Paragraph 11(1) states that:

‘The holder of the authorisation … may, to the extent necessary and in the public interest,

(a) enter land, facilities or equipment owned by third parties to the extent and in the manner necessary to carry out the activities covered by the authorisation,

…

(f) establish on land owned by a third party, outside the built-up area of a municipality, electricity lines and electrical equipment for the transmission and distribution network …

(g) carry out on properties owned by third parties the authorised activities … that are necessary to ensure the operation of the installations or networks whose construction has been authorised …’ (5)

10. Paragraph 11(8) states that:

‘The obligations arising under the rights outlined in Paragraph 1 shall constitute easements associated with the ownership of immovable property. The holder of the authorisation shall be entitled to submit a request for an entry on the land register.’

2. Provisions regarding easements and the land register

11. The referring court transcribes the national provisions on easements and the land register. According to those provisions, easements arise on the basis of a written agreement, a decision by the competent authority or by force of law. The acquisition of a right corresponding to easements require an entry on the land register.

II. Facts, dispute and questions referred for a preliminary ruling

12. The order for reference, along with the additional information supplied by the Slovakian Government, provides the following facts:

– The company Haluška s. r. o. (‘Haluška’) produces hydroelectric energy through a small facility with an installed capacity of 0.0975 MW.

– Although this facility has been operating since 1993 and was ‘rebuilt’ in 2009, Haluška took on its management on 15 October 2014, when it became the owner of the operation. (6)

– In October 2014, Haluška gave notification that it was beginning operations, according to the simplified procedure established in Paragraph 6(4) and (5) of the Energy Law. (7)

– On 6 December 2021, Haluška applied to the Okresný úrad Ružomberok, katastrálny odbor (Land Registry of the District of Ružomberok, Slovak Republic; ‘Land Registry’) for the registration of a legal easement over properties belonging to third parties, pursuant to Paragraph 11(1) and (6) of the Energy Law.

– On 4 February 2022, the Land Registry refused the application, arguing that an easement could only be registered in favour of a holder of an ‘authorisation’ granted pursuant to Paragraph 6(2) of the Energy Law, and not in favour of a company that is subject to the ‘duty of notification’ in subparagraph (4) thereof.

– Haluška lodged an appeal before the Správny súd v Banskej Bystrici (Administrative Court in Banská Bystrica, Slovak Republic) against the decision of the Land Registry. It argued that the interpretation of Paragraph 11(1) of the Energy Law put forward by the Land Registry contradicts EU law, as it favours larger-scale producers, distorts competition and impedes access to the electricity market for smaller-scale producers.

13. The court of first instance dismissed the appeal, having stated that:

– Article 8(3) of Directive 2019/944 does not, in itself, require ‘small-scale producers’ to be granted the same rights as those granted to ‘large-scale producers’;

– the interpretation of Article 11(1) and (8) of the Energy Law by the Land Registry is correct. The establishment of easements for the benefit of smaller-scale producers of electricity as well would considerably increase the number of plots of land subject to easements, which would constitute significant interference into the ownership rights of third parties;

– reserving the legal easements provided for in Paragraph 11(1) and (8) of the Energy Law for holders of an ‘authorisation’ does not impose any restrictions on business operations, since a small-scale producer of electricity may submit a request for the establishment of a voluntary easement pursuant to the Slovakian Civil Code or, if the agreement is not concluded, lodge an action before a court.

14. Haluška contested the decision handed down at first instance before the Najvyšší správny súd Slovenskej republiky (Supreme Court of the Slovak Republic), which is referring the following questions to the Court of Justice for a preliminary ruling:

‘(1) Should national legislation according to which the national legislator has automatically excluded small-scale producers of electricity, operating in accordance with a simplified procedure under Article 8(3) of Directive [2019/944], from entitlement to rights granted under national law corresponding to easements which facilitate business operations in the energy sector, [while] allowing all remaining producers of electricity entitlement to those rights, be deemed to fall within the scope of EU law in the light of Article 194(1)(a) [TFEU], Article 8(1) and (3) and Article 9(1) of that directive?

(2) In the event that the first question is answered in the affirmative: must Article 8(1) and (3) in conjunction with Article 9(1) of Directive [2019/944] be interpreted as precluding national legislation in which the national legislator has automatically excluded small-scale producers of electricity operating in accordance with a simplified procedure under Article 8(3) of that directive from entitlement to rights granted under national law corresponding to easements which facilitate business operations in the energy sector, [while] allowing all remaining producers of electricity entitlement to those rights?’

III. Proceedings before the Court of Justice

15. The request for a preliminary ruling was lodged at the Court of Justice on 19 August 2025.

16. Written observations have been submitted by Haluška, the Slovakian Government and the European Commission.

17. The Slovakian Government and the Commission appeared at the hearing, which was held on 10 June 2026.

IV. Admissibility of the reference for a preliminary ruling

18. The Slovakian Government takes the view that the reference for a preliminary ruling is inadmissible, because it is based on an incomplete description of the facts and an incorrect presentation of the national legal framework. It also believes that the requested interpretation of EU Law does not bear any relation to the situation or to the subject matter of the dispute.

19. In particular, it argues that the questions are hypothetical in nature, as the subject of the dispute is the establishment of an easement which national law reserves, ‘from a material perspective’, for holders of an authorisation for the distribution of energy, and not for producers of energy (whatever their size) such as Haluška.

20. According to settled case-law: (8)

– the national court alone has jurisdiction to define the factual and legislative context of the questions raised, the accuracy of which is not a matter for the Court of Justice to determine;

– the questions submitted enjoy a presumption of relevance and the Court of Justice may decline to rule only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, or where the problem is hypothetical.

21. The Slovakian Government’s objection that it disagrees with the description of the facts and of national law cannot be accepted, as that description is solely the responsibility of the referring court, by which the Court of Justice must be bound.

22. With regard to the alleged insufficiencies of the request for a preliminary ruling, it is true that the referring court:

– does not specify the nature of the works to be carried out on the land belonging to third parties affected by the easement for which registration in the land register was denied. It appears to direct its questions referred for a preliminary ruling, in general terms, towards all of the rights mentioned in Paragraph 11 of the Energy Law, (9) which are of a varied nature, which renders them somewhat imprecise;

– having invoked the principle of non-discrimination, it fails to explain the objective that it believes is being pursued by the Slovak legislation when excluding small-scale producers from the benefit of legal easements. Identifying that objective may be necessary in order to assess whether the unequal treatment is incompatible with EU law.

23. However, those shortcomings in the presentation of the factual and legal framework (10) are either not decisive (in particular, the one relating to the specific purpose of the easement at issue), or they could be clarified during the written proceedings and at the hearing.

24. Furthermore, the analysis of Slovakian Government’s arguments regarding the inapplicability ratione materiae of Article 8 of Directive 2019/944 to the present dispute must be carried out in the context of the interpretation of that provision, not in the context of the admissibility of the reference.

25. There has to be a similar response to the Slovakian Government’s argument in relation to Paragraph 11(1) of the Energy Law (which governs legal easements). The referring court, which has sole jurisdiction to interpret national law, considers that, according to that provision, all producers may benefit from legal easements and, if this is not the case, there is a need to examine its incompatibility with Article 9 of Directive 2019/944. This is therefore not a hypothetical question, but rather one that is directly connected with the essence of the dispute. (11)

26. Consequently, the Court of Justice has before it the information necessary to give a useful answer to the referring court, whose questions must be declared to be admissible.

V. Substance

27. The referring court wishes to know whether national legislation is in conformity with EU law if, as it is interpreted and applied in Slovakia:

– it does not allow a legal easement on land belonging to third parties to be registered in the land register to small-scale producers of energy that take part in the ‘specific’ procedure provided for in Article 8(3) of Directive 2019/944;

– these legal easements may only be registered by holders of an authorisation granted according to the ‘ordinary’ procedure provided for in Article 8(1) of Directive 2019/944.

A. First question referred

28. In its first question, the referring court asks whether the national legislation at issue ‘Should … be deemed to fall within the scope of EU law in the light of Article 194(1)(a) [TFEU] and Article 8(1) and (3) and Article 9(1) of Directive [2019/944]’.

29. Article 194 TFEU is the primary legislation on the basis of which Directive 2019/944 was adopted. The latter is one of ‘the measures necessary to achieve the objectives in paragraph 1’, referred to in Article 194(2) TFEU.

30. Directive 2019/944 implements minimal harmonisation relating to the organisation and functioning of the EU electricity sector. It establishes, among others, rules ‘on open access to the integrated market’, (12) but it does not directly regulate the right (which Slovakian law grants to holders of an ‘authorisation’) to require that legal easements on properties belonging to third parties be entered in the land registry.

31. The right to rely on a legal easement is one of the measures that ‘facilitate business operations in the energy sector’. It therefore affects ‘the organisation and functioning of the Union electricity sector’. While it is the responsibility of the Member States to establish the requirements for regulating who can benefit from the easement and how, when exercising their powers, they must respect the principle of non-discrimination corroborated in Article 9(1) of Directive 2019/944. (13)

32. In my opinion, as the referring court rightly states, the interpretation of Article 8(1) and (3) and Article 9(1) of Directive 2019/944 may affect the resolution of the dispute. The national legislation at issue therefore needs to be evaluated under the premiss that it falls within the scope of application of Directive 2019/944.

33. The Slovakian Government contests the applicability ratione materiae of Article 8 of Directive 2019/944, emphasising that national law provides for two different procedures: one for the construction of a generating facility, and another for conducting a professional activity (14) using the generating facility, once it has been constructed. (15)

34. In its view, the possibility of obtaining the registration in the land register of legal easements is only linked to obtaining the second authorisation (for conducting a professional activity) and not the first (for the construction of the power station). On this basis, and based on its wording, the Slovakian Government maintains that Article 8 of Directive 2019/944 does not apply to this case.

35. There is therefore a need to prioritise clarifying whether Article 8 of Directive 2019/944 is limited to the ‘construction of new generating facilities’ or whether it also extends to ‘conducting a professional activity in the energy sector’. If the first hypothesis were correct, it would be possible to rule out the relevance of that article to the present dispute.

36. According to the Slovakian Government, the scope of application of Article 8(3) of Directive 2019/944 is limited, I repeat, to procedures relating to the ‘construction of new generating facilities’. The Slovakian Government does not believe, however, that it covers procedures for ‘authorisation to conduct an activity in the energy industry.’ It is the latter authorisation which, in Slovakian law, (again according to the Slovakian Government) would allow the permit required to register legal easements in the land register to be granted.

37. On first consideration, the wording of Directive 2019/944 would appear to support the Slovakian Government's theory that Article 8 applies, in general, to the ‘generation’ of energy. (16) Paragraph 3 covers ‘specific … procedures … for small decentralised and/or distributed generation’. Paragraph 1 refers to the (ordinary) procedures for the ‘construction of new generating capacity’.

38. However, the Slovakian Government’s theory does not concur with an interpretation of Article 8 of Directive 2019/944 that takes into account the purpose of the ‘Authorisation procedure’ regulated therein.

39. The purpose of Directive 2019/944 is, among other things, to ‘ensure that no undue barriers exist within the internal market for electricity as regards market entry, operation and exit.’ (17)

40. The link between ‘access to the market’ and authorisation procedures arises from recital 79 of Directive 2019/944: ‘Unduly lengthy authorisation procedures may constitute a barrier to access for new market entrants.’ (18)

41. The common purpose of the procedures in Article 8(1) and (3), of Directive 2019/944 is therefore to facilitate effective and non-discriminatory access for new producers, both large and small-scale, to the internal electricity market, while ensuring that it is not excessively complicated, burdensome or costly (in terms of time and money). (19)

42. In order to gain effective access to the electricity market, it is not sufficient for producers to construct a generating facility, they need to put it into operation to produce electricity.

43. It is apparent from Paragraph 6(1) and (2) of the Energy Law that ‘generating … electricity’ is one of the professional activities in the energy industry that ‘may only be carried out on the basis of and in accordance with an authorisation or a certificate of compliance with the duty of notification’. (20)

44. At the hearing, the Slovakian Government offered as proof the fact that, in Slovakia, a ‘new producer’ that intends to access the internal electricity market by operating a generating facility professionally: (21)

– if it wishes to construct a new power plant, it must first have an official ‘certificate’ issued for that purpose, which is dispensed with for certain small-scale producers; (22)

– in any case, it must have (23) a permit, which gives ‘authorisation to conduct an electrical energy production activity’ (laid down in Paragraph 6 of the Energy Law), which is essential for putting the power station into operation.

45. In this context, the ‘authorisation procedure for new capacity’ referred to in Article 8 of Directive 2019/944 covers, in Slovakia, the combination of (a) the certificate which, in this case, permitted the construction of the facility; and (b) the authorisation to conduct a professional energy production activity using that facility.

46. The ratio of Article 8 of Directive 2019/944 is to ensure access to the market based on procedures that comply with ‘objective, transparent and non-discriminatory criteria’ (and, in the case of small-scale producers, also ‘simplified and streamlined’ criteria). This requirement must be observed both in the procedure to authorise the construction of the power station (when a certificate for that purpose is necessary) and in the procedure for obtaining the authorisation for operation. Applying it only to the construction phase would be insufficient and would not, in practice, ensure any access to the market, given that if a power station does not have authorisation to allow it to operate (in other words, to produce energy), it cannot take part in the common electricity market and it would be difficult to describe it as ‘generating capacity.’

47. As a final point, Article 8 of Directive 2019/944 must be interpreted in a consistent manner, irrespective of the characteristics that national law attributes to the authorisation procedure.

48. Article 8 of Directive 2019/944 imposes the obligation to establish a specific procedure for small-scale producers of electricity. It does not, however, require that the processes needed for the construction of a generating facility and for conducting an electricity production activity using that facility be separated into two different procedures. It is conceivable that Article 8 of Directive 2019/944 could be transposed in a way that combines both authorisations into a single procedure. (24)

49. My opinion, in summary, is that the comparison between the national legislation at issue and Article 8 of Directive 2019/944 must be made in the light of a broad interpretation of the latter, which does not limit its scope to the construction of new generating facilities, but rather extends it to authorisation procedures (in the broadest sense) under which a producer of electricity may access the market. (25)

50. From this point of view, Article 8 of Directive 2019/944 would cover the procedure for granting the authorisation to conduct a professional activity in the energy sector, if Slovakian law linked to that authorisation the opportunity to require the registration of a legal easement on properties belonging to third parties.

51. In any case, whatever the interpretation of Article 8 of Directive 2019/944, the first question referred for a preliminary ruling is limited to determining whether the national legislation that excludes small-scale producers from access to easement rights falls under the scope of application of EU law, established by Article 194(1)(a) TFEU, and by Article 8(1) and (3) and Article 9 of Directive 2019/944. The response to the question put in those terms has to be, in my view, in the affirmative.

B. Second question referred for a preliminary ruling

52. If the answer to the first question referred for a preliminary ruling is in the affirmative (as I propose), the referring court wishes to know whether Article 8(1) and (3), in relation to Article 9(1) of Directive 2019/944, is incompatible with the national legislation at issue.

53. According to the order for reference, the interpretation that has been made so far of the national legislation ‘automatically [excludes] small-scale producers of electricity operating in accordance with a simplified procedure … from entitlement to rights granted under national law corresponding to easements which facilitate business operations in the energy sector, [while] allowing all remaining producers of electricity entitlement to those rights’.

54. The premiss on which the second question referred for a preliminary ruling is based is therefore that the national legislation confers different rights on those who fall under the ‘ordinary’ procedure (Article 8(1) of Directive 2019/944) or the ‘specific, simplified and streamlined’ procedure (Article 8(3) of the same directive).

55. The referring court’s doubts are due to the fact that, in its opinion:

– Slovakian law imposes the ‘specific’, simplified and streamlined procedure, provided for in Paragraph 6(4) and (5) of the Energy Law on small-scale producers, without the opportunity to opt for, as an alternative, the ‘ordinary’ procedure, which is reserved for ‘large-scale’ producers;

– the consequence of this system is that small-scale producers are ‘entirely’ deprived of access to the legal easements established in Paragraph 11 of the Energy Law;

– the restriction is so significant that the objective of Article 8(3) of Directive 2019/944 ‘is completely thwarted’, as it deprives small-scale producers ‘of the advantages that are enjoyed by other producers of electricity operating within a more complex authorisation system.’ (26)

56. The referring court, having explained what is, in its view, the objective of Article 8(3) of Directive 2019/944, (27) criticises the national legislation on this point, in so far as it would not allow that objective to be achieved. (28)

57. Article 8 of Directive 2019/944 is procedural in nature, in the sense that the rights that will be granted, or denied, are not determined by the purpose of the respective procedures. (29) It is limited, I repeat, to providing for procedures, both ordinary and simplified, that will result in an authorisation (in the first case) or in a notification of the activity (in the second case).

58. When it is understood in this way, Article 8 of Directive 2019/944 does not have the direct objective of ensuring healthy competition on the market. (30) It is more about setting out the duties that the Member States have to fulfil when establishing authorisation procedures that are appropriate for allowing genuine and non-discriminatory access for producers of electricity to the market.

59. The preparatory work for Article 8(3) of Directive 2019/944, as well as the equivalent provisions in the previous directives on the internal market for electricity, corroborate that this precept is more concerned with the authorisation procedure than with the content and the effects of the authorisation itself.

60. From its first introduction in Directive 2003/54/EC, (31) the purpose of that provision was ‘to streamline and expedite authorisation procedures for small (below 15 MW) and distributed generation.’ (32) According to Directive 2009/72, the Member States had to ‘ensure that specific authorisation procedures exist’ for small-scale generation. (33) Directive 2019/944 specified, in this regard, that the specific authorisation procedure should be simplified and streamlined. (34)

61. This legislative pathway shows that Article 8(3) of Directive 2019/944 is the result of a process of gradual adaptation of the procedure for authorisation to adjust it to the needs of small-scale producers of electricity. The aim is that they are not blocked or dissuaded from accessing the market by the characteristics of the procedure.

62. From the point of view of the substance, rather than just the procedure, what arises from the Slovakian legislation establishing dual procedures is that, when evaluated as a whole, it has a paradoxical consequence: what should be a benefit for small-scale producers of electricity becomes a penalty. At the end of the ‘simplified’ procedure, these producers will receive a permit that does not allow them to apply for the registration in the land register of the legal easements at issue, unlike those who use the ordinary procedure.

63. The referring court, as I have already stated, says that the simplified procedure divests small-scale producers of rights that have a significant impact on their access to the market. (35)

64. If my understanding of the order for reference is correct, the referring court: a) makes the assumption that the national legislation is preventing small-scale producers from using the ‘ordinary’ procedure; (36) and b) does not consider the possibility that those small-scale producers are foregoing (for whatever legitimate reason they may have) the simplified procedure and using the ordinary procedure. (37)

65. The second question referred for a preliminary ruling therefore goes beyond the strictly procedural framework to deal with the distinction between the rights that belong to the holder of an ‘authorisation for new capacity’, according to which it was obtained via the procedure laid down in Article 8(1) or (3) of Directive 2019/944.

66. When it is put in this way, I am not convinced that the response to this question is to be found directly in Article 8 of Directive 2019/944. As I have already explained, this precept does not in itself regulate the rights belonging to the holder of the authorisation, but rather it organises the procedure for accessing the market. (38)

67. Even if having the rights inherent to the legal easement were not an essential factor for small-scale producers to access the market, (39) whether or not they have those rights may be a factor that impacts, to a greater or lesser extent, the operation of their activity. This is where the rules of Directive 2019/944 fully apply in relation to the activity of producers of electricity on the market, and to the rights and obligations of businesses once they have accessed it. (40)

68. In addition to these rules, one must consider those which, for aspects that have not been the subject of minimum harmonisation at EU level, the Member States have adopted. The latter must, in any case, comply with the general principles of EU law, including the principle of non-discrimination, which applies in general and is laid down in Article 3(4) and Article 9(1) of Directive 2019/944. (41)

69. I therefore consider that the second question referred for a preliminary ruling must be resolved mainly by referring to Article 9(1) of Directive 2019/944, in connection with Article 8(3). (42)

70. The easements that Slovakian law links to the ‘type’ of authorisation obtained are not directly regulated in Directive 2019/944. In this area, while the Member States do have a degree of discretion which allows them to direct how operators have to act, they must ensure, in any case, that the objectives of Directive 2019/944 are fulfilled and that ‘the criteria chosen … are objective and non-discriminatory’. (43)

71. Equality before the law ‘is a general principle of EU law which requires that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such different treatment is objectively justified.’ (44)

72. The report explaining the Energy Law (45) shows that the objective of Paragraph 11 thereof is to allow the holder of the authorisation to conduct the activities covered by it without the prior consent of the owner of the property affected by the easement. (46)

73. The Slovakian Government points out that the situation of large and small-scale energy producers is not comparable, due to the exemption that the latter have from complying with some professional requirements and particular duties that the former must comply with. (47) However, none of these requirements is related to the objective of Paragraph 11, whose rules establish rights that can facilitate any producer of energy in conducting its activity, whether it be large or small. (48)

74. Subject to assessment by the referring court, everything appears to indicate that the two situations may be considered to be comparable (specifically in relation to the legal easement as a tool for enabling the generation of electricity) and that the current system objectively involves unequal treatment in favour of large-scale producers. As holders of an ‘authorisation’, they may obtain the registration of the easement regardless of whether the owner of the affected property consents, while in order to achieve the same result, small-scale producers must use methods whose result is uncertain (it will depend on the will of the landowner) or are longer and more complex. (49)

75. A difference in treatment may be justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legitimate aim pursued by the legislation concerned and is proportionate to the aim pursued by the treatment concerned.

76. According to the Slovakian Government, the objective of the domestic legislation is to prevent there being a disproportionate increase in infringements of the ownership rights of owners of properties affected by the easements. This instrument (the legal easement) is reserved for those who are serving the public interest. (50)

77. The court a quo does not, in fact, deny that the protection of the ownership rights of third parties whose properties are affected by the legal easements could constitute an objective that might justify the restriction at issue.

78. The problem is transferred to the proportionality of the measure, given that there would be another appropriate and less restrictive alternative that would guarantee that objective.

79. The Land Registry rejects the application by the small-scale producer based on a purely formal criterion (the ‘confirmation of the fulfilment of the duty of notification’, instead of the ‘authorisation’), without analysing the other requirements of Paragraph 11(1) of the Energy Law. (51) A broader analysis, however, would enable the legitimate objective invoked to be achieved without at the same time necessarily denying small-scale producers the right to apply for the registration of a legal easement.

80. When questioned at the hearing, the Slovakian Government acknowledged that Paragraph 11 of the Energy Law does not confer an absolute right to obtain the registration of the easement. It explained that the Land Registry has a considerable degree of latitude for evaluating whether something is in the public interest and to weigh up, where applicable, the conflicting interests of the producer and the owner of the affected land.

81. Based on what the Slovakian Government stated in its written observations, (52) the Energy Law is based on an ex ante and abstract evaluation, conducted directly by the legislator, that there is no public interest in the generation of energy by small-scale producers. That evaluation excludes weighing up situations on a case-by-case basis, which the Land Registry cannot undertake.

82. At the hearing, the Slovakian Government acknowledged that it was not in a position to explain what legal arguments justified the decision of the national legislator to adopt this approach.

83. I do not think that such a concept of the ‘public interest’ is compatible with Directive 2019/944. The reason why that directive aims to foster the production of electricity on a small scale and the incorporation into the market of electricity from renewable sources (such as hydroelectric energy) is that there is a public interest in promoting them. (53)

84. I am not arguing that small-scale producers of electricity should enjoy identical rights to those granted to producers whose generation activity is critical or essential to the stability of the network. I agree with the referring court (54) that the limited size and lesser impact of small-scale generation, and the exemption from the duty to comply with various types of requirements, may justify a more prudent approach when granting rights which, by their very nature, could impact on other areas of public interest or on the rights of third parties.

85. In several passages of the order for reference, the referring court refers to the ‘current interpretation and application of the Slovakian legislation’ (55) as an obstacle that would prevent it from overruling the rejection of the registration of the easement applied for by Haluška.

86. Having said that, given that the referring court is the Supreme Court, it is responsible for interpreting national law, and is not necessarily bound by prior decisions. It appears that it can be inferred from its explanation that nothing would prevent it from interpreting Paragraph 11(1) of the Energy Law in accordance with EU law, in such a way that it avoids the unjustified inequality in the way that some producers are treated compared with others.

87. Based on this (possible) interpretation in accordance with EU law, the national legislation should not prevent the Land Registry from having a sufficiently broad degree of latitude to evaluate, in each case, whether there is a public interest, including when a small producer of hydroelectric energy applies to use a legal easement.

88. In this context, the Land Registry will be able to weigh up the conflicting interests of the energy producer and the owner of the affected land and, if necessary, avoid the risk of abuse arising from an uncontrolled proliferation of legal easements.

89. In short, and subject to evaluation by the referring court, Paragraph 11 of the Energy Law could be interpreted in accordance with Directive 2019/944 without that interpretation involving automatically creating a disproportionate prejudice to the ownership rights of the owners of the affected land (who, moreover, must be compensated in accordance with the national legislation).

VI. Conclusion

90. Based on the above, I propose responding to the Najvyšší správny súd Slovenskej republiky (Supreme Court of the Slovak Republic) as follows:

‘Article 9(1) 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

must be interpreted as meaning that, unless the national legislation may be interpreted in a way that is compliant with Directive 2019/944, which is for the referring court to decide, a rule of internal law is not compatible with Article 9(1) of that directive if, on the basis of an ex ante and abstract evaluation of the public interest, it prevents small-scale producers of hydroelectric energy that are subject to the simplified procedure laid down in Article 8(3) of that directive from benefiting from a legal easement that is granted to other electricity producers.’

1 Original language: Spanish.

2 The traditional understanding of an easement is that it is an encumbrance imposed on land in favour of another piece of land belonging to a different owner. It may be established by law (legal easement) or by the will of landowners (voluntary easement).

3 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).

4 Zákon č. 251/2012 Z. z. o energetike a o zmene a doplnení niektorých zákonov v znení účinnom do 31. marca 2022 (Law No 251/2012 on energy and amending and supplementing certain laws, in the version in force up to 31 March 2022; ‘the Energy Law’).

5 The list in Paragraph 11(1) covers other powers, such as to ‘remove and clear trees and other vegetation that threaten the safety or reliability of the operation of energy equipment’ (subparagraph (b)); ‘modify grassland’ (subparagraph (c)); or ‘access, with the prior consent required by the specific legislation, closed premises or facilities’ belonging to the Ministries of Defence and of the Interior, the Armed Forces and the Police, as well as other State offices (subparagraph (d)). In the original version of the request for a preliminary ruling, the text of subparagraph (f) is in bold, which would appear to indicate that it is the provision at issue before the referring court. According to the Slovakian Government, however, the dispute concerns the easement provided for in subparagraph (g).

6 This is concluded from the documents mentioned in note 68 of the written observations by the Slovakian Government. The change in ownership took place by means of a contract dated 15 October 2014, through which the hydroelectric operation was passed to the ownership of the company Haluška.

7 In the national file sent to the Court of Justice there is a document, issued on 20 October 2014 by the Úrad pre reguláciu siet’ových odvetví (Regulatory Office for Network Industries, Slovak Republic), which confirms that Haluška fulfilled the duty of notification that it was starting operations, which took place on 15 October 2014. That official document states that it serves as a permit for conducting operations in the energy sector.

8 Judgment of 29 January 2026, Fondazione Teatro alla Scala di Milano (C‑668/24, EU:C:2026:60, paragraph 35 and the case-law cited).

9 The court a quo indicates that national law is depriving small-scale producers of ‘rights that have a significant impact on access to the market for those running businesses in the energy sector and on their activity on the market (construction and access to facilities on land owned by third parties without the consent of the owner, operation and maintenance of those facilities, etc.)’ (order for reference, paragraph 44, emphasis added).

10 ‘The need to provide an interpretation of EU law which will be of use to the national court makes it necessary for the national court to define the factual and regulatory context of the questions it is asking or, at the very least, to explain the factual hypotheses on which those questions are based.’ Judgment of 30 April 2026, Kotaňák (C‑748/24, EU:C:2026:358, paragraph 29 and the case-law cited).

11 Nor is the reference for a preliminary ruling hypothetical by virtue of the fact – disclosed by the Slovak Government at the hearing – that Haluška might have obtained access to the land subject to the easement by other means (by contract and/or by acquisitive prescription). That circumstance, if established, would form part of the assessment of the facts, which falls exclusively within the remit of the referring court.

12 Article 1, second paragraph.

13 According to the table in Annex IV of Directive 2019/944, Article 9(1) correlates with Article 3(1) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55). In relation to this, the Court of Justice stated that: ‘… Article 3(1) [of Directive 2009/72] enshrines, in the field of the internal market in electricity, the general principle of non-discrimination, which forms an integral part of the general principles of EU law. … The Court has held that that principle is binding on Member States where the national situation at issue in the main proceedings falls within the scope of EU law’ (judgment of 7 November 2019, UNESA and Others (C‑105/18 to C‑113/18, EU:C:2019:935, paragraph 49)).

14 In this context, the term ‘professional’ indicates that it is a business activity. I shall use the term in this way throughout the present opinion.

15 In the opinion of the Slovakian Government, Article 8 of Directive 2019/944 is limited to the ‘construction of new generating facilities’, which, in its national law, is dependent on a different authorisation to that being debated in the dispute (paragraphs 24 to 30 of its written observations). It emphasises that, contrary to what the referring court states, the transposition into national law of Article 8(3) of Directive 2019/944 should not be found in Paragraph 6 of the Energy Law, but in Paragraph 12 of that law.

16 The title of that provision is ‘Authorisation procedure for new capacity’.

17 See recitals 12 and 14 of Directive 2019/944.

18 Emphasis added. The recital states that ‘Authorisation procedures should not lead to administrative burdens that are disproportionate to the size and potential impact of the producers.’

19 At the hearing, the Slovakian Government admitted that this is the objective of the duty of notification provided for in Paragraph 6(4) of the Energy Law, but it insisted that only Paragraph 12 of that law transposes Article 8(3) of Directive 2019/944 into national law.

20 Paragraph 6 of the Energy Law regulates the authorisation that is required not only to conduct an activity of generating electricity, but also for transporting, distributing and supplying it. Consequently, it may be connected with several of the ‘authorisations’ provided for in Directive 2019/944, including the one in Article 8 relating to generating energy.

21 It is not disputed that Haluška intends to conduct its activity on a professional basis and not simply for its own use, an assumption that is said to be included in Paragraph 4(2) of the Energy Law.

22 According to Paragraph 12(2) of the Energy Law, the certificate is not necessary if the facilities are to be used for producing electricity from solar energy of up to 500 kW or from another energy source of up to 1 MW.

23 At the hearing, the Slovakian Government explained that the authorisation is required both for producers operating a newly constructed power station and for those resuming activity at a pre-existing power station, and confirmed that without one, they cannot produce energy.

24 In my Opinion in the case of Regione Emilia-Romagna (C‑653/24, EU:C:2025:966), I analysed the legislative framework applicable to small-scale Italian hydroelectric producers that collect water belonging to the public water supply to produce electricity. In that context a single authorisation procedure was established governing both the construction of the power station and its operation (see footnote 30 of that Opinion).

25 At the hearing, it was expressed that there are difficulties related to the concept of the ‘construction’ of a new power station, as it is not clear whether there is a minimum threshold for identifying ‘a new construction’ when remodelling and adaptation work is done on a pre-existing facility. These difficulties can and must be resolved by taking into account the ultimate aim of the legislation, which is to facilitate the entry of a new producer onto the market, whatever the date of construction of the facility that they are operating.

26 Order for reference, paragraphs 40 and 43.

27 Order for reference, paragraph 40: ‘the purpose and meaning of Article 8(3) … is to provide small decentralised producers with easier access to the electricity market, and thus to create a competitive electricity market (involving a larger number of producers of electricity), to decentralise the production of electricity (to provide small-scale producers with access to the market and protect them against monopolies held by large-scale electricity suppliers) … and, in the final analysis, to benefit consumers given that healthy competition on the electricity market will result in lower electricity prices’.

28 Order for reference, paragraph 40, in fine: this objective ‘… cannot be achieved if the national legislator, on the one hand, provides for a special procedure for granting authorisations to small-scale producers of electricity, but on the other hand, deprives them of the benefits enjoyed by other producers of electricity operating under a more complex system for granting authorisations as provided for under Article 8(1) of Directive 2019/944.’

29 Paragraph 4 grants some rights solely to ‘applicants’ who, having taken part in the procedure, are denied the authorisation applied for.

30 As |I will explain below, its indirect effect is indeed to increase the number of producers of electricity that are operating on the market and thus to facilitate the creation of a competitive environment.

31 Directive of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37). It only required the Member States, in general, to take into account the ‘limited size and potential impact’ of small generating facilities in the context of the authorisation procedure. Council Directive 96/92/EC of 19 December 1996 concerning common rules for the internal market in electricity (OJ 1997 L 27, p. 20), did not contain any provision aimed at facilitating access to the market for small-scale producers of electricity.

32 According to the Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council concerning common rules for the internal market in electricity and repealing Directive 96/92/EC and concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (document SEC/2003/0161 final, available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52003SC0161). Article 6(3) did not appear in the original Commission proposal (COM/2001/0125 final). At first reading, the European Parliament proposed (Amendment 50) the introduction of a new paragraph, according to which ‘small decentralised and/or embedded generators shall benefit from simplified authorisation procedures.’ The objective of the amendment was ‘To encourage the development of decentralised energy sources while acknowledging the more limited environmental and social impacts that the smaller power stations have’ (see the European Parliament report, document A5-0077/2002, of 1 March 2002, available at https://www.europarl.europa.eu/doceo/document/A-5-2002-0077_EN.html?redirect#_section1). The Commission accepted this principle. The provision was reworded, leaving ‘the aim of arriving at speedier authorisation procedures for smaller generation plants untouched’ (document SEC/2003/161 final).

33 According to Article 7(3) of Directive 2009/72, ‘Member States shall ensure that specific authorisation procedures exist for small … generation, which take into account their limited size and potential impact’ (the changes from the 2003 version are shown in italics). An attempt to revise Article 6(3) of Directive 2003/54 appeared in the European Parliament Opinion at first reading, Amendment 59 of which proposed imposing on the Member States the obligation to ensure that ‘small decentralised and/or distributed generators shall benefit from simplified authorisation procedures’: see European Parliament Report A6-0191/2008, available at https://www.europarl.europa.eu/doceo/document/A-6-2008-0191_EN.html?redirect (emphasis added).

34 This change is due to European Parliament Amendment 43 (available at https://www.europarl.europa.eu/doceo/document/A-8-2018-0044_EN.html#_section2).

35 In paragraphs 40, 42 and 44 of the order for reference, as well as in the wording of the two questions referred for a preliminary ruling, the court a quo repeats insistently that small-scale producers are being ‘deprived’ of the right to legal easements.

36 This is substantiated by the fact that stricter requirements for professional abilities must be fulfilled in that case. The Commission highlighted this aspect several times at the hearing.

37 The referring court does not, therefore, raise the question as to whether national legislation that deprives small-scale producers of free choice between the procedures laid down in Article 8(1) and (3) of Directive 2019/944 is compatible with that article. In the light of the analysis of the ratio of the precept, I consider that its objective is to provide small-scale producers with a quicker procedure, designed as an alternative to the ordinary procedure. I do not believe, however, that Article 8(3) of Directive 2019/944 intends to force them to use the simplified procedure, even if, for some legitimate reason, they do not wish to do so and prefer to use the ‘ordinary’ route to access the market.

38 At the hearing, both the Slovakian Government and the Commission considered that the regulation of the rights arising from the authorisation is not found in Article 8 of Directive 2019/944.

39 Everything appears to indicate that Haluška operated on the market from 2014 and, for several years, acted as a producer of electricity without having the easement rights that it applied to register in 2021.

40 Rules that govern, for example, freedom of access to the distribution and transport network, ownership unbundling from transmission system operators to prevent discrimination in the operation of the network (Articles 6 and 43); or access for the producer to customers by establishing ‘direct lines’ (Article 7). In the absence of additional details regarding the nature of the works that it intends to carry out under the easement applied for in the dispute a quo, it is not possible to evaluate whether these provisions might be relevant.

41 The Member States ‘… shall not discriminate between those undertakings [the electricity companies] as regards either rights or obligations.’ (Article 9(1) of Directive 2019/944).

42 The procedure that led to the ‘authorisation’ at issue here (rectius, to the confirmation of the fulfilment of the duty of notification) concluded on 20 October 2014, when Directive 2009/72 was in force. Article 7 of that directive was largely equivalent to the current Article 8 of Directive 2019/944. In the interests of simplification, I will continue to refer to Article 8 of Directive 2019/944 even though the applicable legislation ratione temporis was Article 7 of Directive 2009/72.

43 See, by analogy, judgment of 9 October 2008, Sabatauskas and Others (C‑239/07, EU:C:2008:551, paragraph 47).

44 See, ex multis, judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2022:168, paragraph 54).

45 Cited in note 63 of the written observations by the Slovakian Government.

46 This report also states that, ‘when authorising the installation of lines and systems for the electrical network, the planning authority will decide on the scope and possibilities for operating them’ and that the ‘holder of the authorisation [is obliged to] provide the owner of the property with a single compensation payment, but only for the area that they may not use as a result of the application of the legal easement by the holder of the authorisation’.

47 The Slovakian Government mentions, in particular, the duty to provide certain information to the Ministry of the Economy or the transmission system operator, and to allow access for State officials to the buildings in which the activity is being conducted, to ensure that those carrying out tasks related to that activity have the professional ability to do so, and to make sure that the facilities comply with the requirements for quality, safety, protection of health in the workplace and protection of the environment.

48 According to the case-law of the Court of Justice, ‘The requirement that situations must be comparable … must be assessed in the light of all the elements that characterise them and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question’: judgment of 2 September 2021, Belgian State (Right of residence in the event of domestic violence) (C‑930/19, EU:C:2021:657, paragraph 58) (emphasis added). In this case, the distinction at issue is not established (directly) by the provision on the authorisation procedure (Paragraph 6 of the Energy Law), but rather by the provision establishing the easements (Paragraph 11 of the same law). The comparability of the situations therefore has to be assessed in the light of the purpose of the latter precept.

49 A small-scale producer may only obtain an easement via a contract with the landowner or in the context of court proceedings.

50 Written observations of the Slovakian Government, paragraphs 60 to 63.

51 These requirements include necessity and benefiting the public interest. According to the precept, the registration in the land register of a legal easement is only permitted ‘to the extent that it is necessary and for the sake of the public interest’.

52 According to these observations by the Slovakian Government (paragraph 64), producers that conduct their activity based on fulfilling the duty of notification operate solely for the purpose of making profits and not in the public interest, as they do not play a critical role in infrastructures and their production is not essential for the stability of the network.

53 Recital 6 and Article 58(d) of Directive 2019/944. At the hearing, the Slovakian Government ultimately acknowledged that there is indeed a public interest in the generation of electricity from renewable sources.

54 Paragraph 43 of the order for reference.

55 Paragraphs 2, 39, 44 and 45 of the order for reference.

Opinion of Advocate General Campos Sánchez-Bordona delivered on 17 September 2026.###

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