Fluvius Antwerpen: Supplies Hidden in a Theft?

Abstract

In its judgment of 27 April 2023 in Fluvius Antwerpen v. MX (Case C-677/21), the ECJ decided that the supply of electricity by a distribution network operator, even if involuntary and the result of unlawful conduct on the part of a third party, constitutes a supply of goods for consideration entailing the transfer of the right to dispose of tangible property. In this article, the author analyses the judgment as well as the opinion of AG Kokott of 12 January 2023 – in their parts regarding the understanding of the supply of goods – and reaches the conclusion that this judgment contradicts previous case law, or must be understood very narrowly taking into account peculiar legal background of the case in Belgian domestic rules on energy distribution.