Judgment;Abstract — ECLI:EU:C:2025:991
Date: 2025-12-18
Language of the case: French
Court formation: Fourth Chamber
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-633/23 – 1 
Case C-633/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
23 October 2023 
Referring court:  
Cour d’appel de Bruxelles (Belgium) 
Date of the decision to refer:  
18 October 2023 
Applicants:  
Electrabel SA 
Fédération belge des entreprises électriques et gazières 
Organisatie voor Duurzame Energie Vlaanderen ASBL 
Wind4Wallonia 2 SA 
Luminus SA 
EDF Belgium SA 
Activent Wallonie SCRL 
Eol’Wapi 
Lumiwind C 
Luminus Wind Together SC 
Defendant:  
Commission de Régulation de l’Électricité et du Gaz (CREG) 
Intervener: 
État belge 
  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-633/23 
 
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Subject matter of the main proceedings 
Annulment of the décision de la Commission de Régulation de l’Électricité et du 
Gaz (B)2511 du 28 février 2023 sur le modèle de déclaration à introduire par les 
débiteurs du prélèvement instauré dans le cadre du plafond sur les recettes issues 
du marché des producteurs d’électricité (Decision (B)2511 of the Commission for 
Electricity and Gas Regulation [(‘the CREG’)] of 28 February 2023 on the model 
declaration to be completed by debtors of the levy introduced in connection with 
the cap on market revenues of electricity producers) (‘the contested decision’). 
The contested decision is available at the following internet address: 
https://www.creg.be/fr/publications/decision-b2511. 
Succinct presentation of the facts and procedure in the main proceedings 
1 By adopting Regulation (EU) 2022/1854 of 6 October 2022 on an emergency 
intervention to address high energy prices, the Council of the European Union 
intended, in the context of an upsurge in prices, ‘to mitigate the effects of high 
energy prices through exceptional, targeted and time limited measures’ (Article 1 
of that regulation). With regard to the energy market, that regulation provides, 
inter alia, for a mandatory cap on market revenues and lays down rules on the 
distribution of surplus revenues (see Chapter II, Section 2, in particular Articles 6 
and 7 of that regulation). 
2 In accordance with Article 2(5) of Regulation 2022/1854, ‘“market revenue” 
means realised income a producer receives in exchange for the sale and delivery 
of electricity in the Union, regardless of the contractual form in which such 
exchange takes place, including power purchase agreements and other hedging 
operations against fluctuations in the wholesale electricity market and excluding 
any support granted by Member States’. ‘Surplus revenues’ means a ‘positive 
difference between the market revenues of producers per MWh of electricity and 
the cap on market revenues of 180 EUR per MWh of electricity provided for in 
Article 6(1)’ (Article 2(9) of Regulation 2022/1854). 
3 Article 6(1) of that regulation provides that ‘market revenues of producers 
obtained from the generation of electricity from the sources referred to in 
Article 7(1) [namely nuclear, wind, solar and geothermal energy, hydropower 
without reservoir, biomass excluding biomethane, waste, lignite, crude petroleum 
products and peat] shall be capped to a maximum of 180 EUR per MWh of 
electricity produced’. 
4 The principle adopted is therefore that the electricity market participants which 
benefit from its exceptionally high prices in view of the system for determining 
electricity prices on the daily wholesale market without incurring a corresponding 
increase in costs will have their revenue exceeding a certain ceiling taken by the 
States so as to enable them to finance measures targeted in favour of users. The 
ceiling adopted is distinctly higher than the average peak prices on the market 
before February 2022, the idea being that when the market participants took their 
ELECTRABEL AND OTHERS 
 
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initial investment decisions, they did not expect that they would be able to receive 
such levels of revenue, which is therefore extraordinary revenue resulting from a 
windfall. 
5 On 22 December 2022, the Belgian legislature, in implementation of Regulation 
2022/1854, inserted into the loi du 29 avril 1999 relative à l’organisation du 
marché de l’électricité (Law of 29 April 1999 on the organisation of the electricity 
market; ‘the Electricity Law’) a Chapter Vb entitled ‘Cap on market revenues of 
electricity producers’, consisting of an Article 22b and an Article 22c. That 
amendment was introduced by the loi du 16 décembre 2022 modifiant la loi du 29 
avril 1999 relative à l’organisation du marché de l'électricité et introduisant un 
plafond sur les recettes issues du marché des producteurs d’électricité (Law of 
16 December 2022 amending the Law of 29 April 1999 on the organisation of the 
electricity market and introducing a cap on the market revenues of electricity 
producers; ‘the Law of 16 December 2022’). 
6 The new Article 22b of the Electricity Law introduces a cap on the market 
revenues of electricity producers by means of a State levy amounting to 100% of 
the ‘surplus’ revenues realised between 1 August 2022 and 30 June 2023 (‘the 
levy’). ‘Surplus revenues’ means revenues exceeding a cap of EUR 130 per MWh 
of electricity (Article 22b(4) of the Electricity Law). Article 22b(5) of that law 
defines market revenues as the income realised for each transaction by the debtors 
concerned, in exchange for the sale and delivery of electricity during the period in 
question. The second subparagraph of that provision provides for presumptions 
(according to the type of production installation) for the purpose of determining 
those revenues. Those presumptions are based, in essence, on the transactions 
which the debtor is deemed to have made (see paragraph 10 et seq. of this 
summary). 
7 Article 22b(6) of the Electricity Law makes the CREG responsible for devising 
the model declaration and the format of documents to be sent by debtors of the 
levy for the purpose of establishing that levy. Pursuant to paragraph 7 of the same 
article, the CREG must propose the levy due from each debtor, each proposal then 
being sent to the Service public fédéral Économie (Federal Public Service for the 
Economy) (paragraph 8). The CREG is also responsible for auditing the 
declarations of the debtors (Article 22c(1) of the Electricity Law). Upon receiving 
the CREG’s proposal, the Federal Public Service for the Economy determines the 
amount of the levy to be paid (Article 22c(2) of that law). If the declaration is not 
filed by a debtor within the prescribed deadline or in the event of an incomplete 
declaration, the CREG may propose a levy on an ex officio basis (second 
subparagraph of Article 22b(7) of that law). 
8 Pursuant to the Electricity Law, the CREG adopted the contested decision which 
the applicants in the main proceedings, namely companies active in the electricity 
production and supply sector and business federations in the sector, are requesting 
the referring court to annul, in particular on the ground that that decision is not in 
conformity with Regulation 2022/1854. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-633/23 
 
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The essential arguments of the parties in the main proceedings and the 
reasoning of the referring court 
Use of presumptions for the purpose of determining revenue 
9 The applicants in the main proceedings criticise the use of presumptions for the 
purpose of determining the market revenues of electricity producers. The 
contested decision adopts, at the level of documents/information to be sent in 
accordance with the model declaration that it establishes, the presumptions 
established in the second subparagraph of Article 22b(5) of the Electricity Law. 
Accordingly, the user, when declaring its revenue on the platform provided for 
that purpose by the CREG, must ‘select the appropriate presumption(s) from a 
drop-down menu […]’ (paragraph 83 of the contested decision). 
10 The first and second presumptions (provided for in points 1 and 2 of the second 
subparagraph of Article 2b(5) of the Electricity Law) apply respectively to the 
Doel 3 and 4 and Tihange 2 and 3 nuclear power stations, and the Tihange 1 
nuclear power station. They are irrebuttable. 
11 The third presumption (point 3 of the second subparagraph of Article 2b(5) of the 
Electricity Law) applies to installations that are not referred to in the first two 
presumptions and whose production is covered by a power purchase agreement. 
12 The fourth presumption (point 4 of the second subparagraph of Article 2b(5) of 
the Electricity Law) applies to installations that are not referred to in the first three 
presumptions and that benefit from a production support scheme (unless that 
scheme provides that the amount of support does not depend upon the evolution of 
the electricity market price). 
13 The fifth presumption (point 5 of the second subparagraph of Article 2b(5) of the 
Electricity Law) applies to installations that are not referred to in the first four 
presumptions. 
14 The first to fifth presumptions are based, in essence, on the fiction that the 
electricity is deemed to have been sold on an electricity exchange platform on a 
daily basis at the electricity price on each of those days if the electricity is sold on 
a fixed-term basis, and on an hourly basis if the electricity is sold on the one-day 
market. 
15 The third to fifth presumptions are rebuttable if the debtor can provide the 
evidence that the market revenues are different from those determined under those 
presumptions as well as a justification for a different sales strategy from the one 
envisaged in the presumption that it intends to rebut (point 6 of the second 
subparagraph of Article 22b(5) of the Electricity Law and paragraph 142 of the 
contested decision). However, rebutting that presumption is administratively very 
cumbersome, in so far as it requires the debtor to provide evidence of its actual 
market revenues ‘for its entire production park’, which therefore covers the 
ELECTRABEL AND OTHERS 
 
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installations subject to the levy system as well as the other installations (for 
example, gas and coal technologies). 
16 Moreover, new, irrebuttable presumptions are applied to the rebuttable nature of 
those presumptions. 
17 First, under point 6(a) of the second subparagraph of Article 22b(5), intra-group 
sales ‘shall be deemed to have been concluded for the purposes of applying [that] 
article on the basis of a price [corresponding to the] day market price of the 
transaction for the delivery period concerned by the transaction, as published by 
an energy block exchange platform operating in Belgium’. However, an intra-
group transaction can take place at a lower cost than a market price (lack of 
margin and/or limitation of costs linked to production and consumption on a 
shared site), or depend on a market price not published in Belgium. 
18 Second, according to point (b) of that provision, ‘any volume of electricity 
produced and sold, but not sold on a fixed-term basis, shall be deemed to be sold 
at the market reference price’ defined in Article 2, point 40, of the Electricity Law 
as a daily market price (and hence very sensitive to price fluctuations which may 
result in the ceiling being exceeded more frequently and, accordingly, in a higher 
levy). However, a volume of electricity not sold on a fixed-term basis may have 
been sold on a contractual basis without reference to a market or to a daily market. 
19 Third, point (d) of that provision provides that ‘the volume of electricity sold on a 
one-day market shall be deemed to have been the subject of a transaction for each 
delivery period of one hour’. That presumption may lead to unrealised revenues 
being taken into account (see paragraph 21 of this summary). 
20 In view of those three presumptions applicable to the rebuttal of the third to fifth 
presumptions mentioned above, the applicants consider that the whole system is 
governed by presumptions and that it does not therefore allow revenues actually 
obtained to be taken into account. 
21 Therefore, according to them, that system results in fictitious revenues being taken 
into account without the electricity producers being able to prove their actual 
revenues, since those presumptions are ultimately irrebuttable. Thus, the 
presumptions would give rise to a levy where the ceiling is exceeded on one day 
or one hour of the period, even though the price actually received is a lower 
average price than the ceiling or a fixed price lower than the ceiling. The real aim 
of that system is to increase the tax regardless of the revenues actually realised. 
22 However, they submit that the cap established by Regulation 2022/1854 relates to 
the revenues actually obtained by electricity producers and is applicable per 
transaction. In accordance with the mandatory nature and direct effect of that 
regulation and the principles of the primacy and effectiveness of EU law, the 
CREG was obliged to apply that regulation and had to disapply the national 
provisions (in this case, the presumptions) contrary to the rules of EU law. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-633/23 
 
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23 According to the CREG, the objective of Regulation 2022/1854 is to establish a 
mandatory maximum ceiling for electricity market revenues, but without 
harmonisation: the Member States have therefore retained the power to adopt 
different measures, which they have done, since the measures adopted vary 
considerably from one Member State to another as regards, in particular, the level 
of the cap and the application periods. 
24 Moreover, recital 37 of Regulation 2022/1854 expressly provides that the Member 
States have the possibility to use reasonable estimates for the calculation of the 
cap on market revenues. 
25 That is what the legislature did when having recourse to the presumptions at issue 
which were necessary, since it is technically impossible to precisely link each 
electron of electricity fed in to one transaction with one price. 
26 That system does not result in fictitious revenues but provides estimates in order 
to establish the revenue cap, which is, in any event, much higher than what the 
producers could hope to obtain on the market before the energy crisis. 
27 Although the CREG does not dispute that the presumptions concerning nuclear 
power stations are effectively irrebuttable, it maintains that those presumptions are 
consistent with the sales strategies previously adopted in agreements with the 
power stations concerned and applied for years (for the purpose of levying 
charges), which cannot be regarded as unreasonable. 
28 The other presumptions are rebuttable under point 6 of the second subparagraph of 
Article 22b(5) of the Electricity Law. Although the evidence of actual revenues 
must be provided for the entire production park (hence, not only for the 
installations subject to the levy), it is a reasonable requirement intended to prevent 
artificial transfers of revenues between installations. That provision also serves to 
prevent debtors belonging to the same group from circumventing the levy by 
establishing an artificial transaction price which is lower than the cap (a strategy, 
moreover, provided for in Article 6(3) of Regulation 2022/1854). The other rules 
laid down in point 6 of the second subparagraph of Article 22b(5) of the 
Electricity Law do not amount to imposing fictitious revenues, but are intended to 
enable the levy to be applied per transaction. 
29 The État belge (Belgian State) adds that Regulation 2022/1854 did not, itself, lay 
down any specific rule for calculating the amount of surplus revenues and that the 
Commission gave no guidance about that, contrary to what was provided for in the 
regulation. It is therefore for the Member States to establish such a rule, and it 
follows from recital 37 of that regulation that, in order to do so, they were 
authorised to use reasonable estimates such as the presumptions at issue. 
30 The recourse to presumptions helps to alleviate the technical difficulties involved 
in precisely determining the price for each MWh sold and delivered during the 
period of application of the levy. It is also intended to alleviate the administrative 
burden of debtors and of public entities responsible for applying the levy. 
ELECTRABEL AND OTHERS 
 
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31 The referring court, for its part, notes that, in view of the differences in the manner 
in which wholesale electricity markets are organised in the Member States and 
specific local characteristics, the Member States are assigned a role in Regulation 
2022/1854 in respect of the manner in which the cap is implemented, which 
means that that regulation had to be the subject of national measures in each 
Member State. 
32 The referring court also notes, in that regard, the lack of Commission guidance on 
the implementation of the mandatory cap, which was, however, provided for in 
Article 6(5) of Regulation 2022/1854. 
33 It nevertheless finds that the system introduced by the Belgian legislature in 
Article 22b of the Electricity Law on which the contested decision bases its model 
declaration of revenues, which constitutes the stage prior to the setting of the levy 
due from each debtor, is based on a set or cascade of presumptions from which the 
debtor can never completely escape, with the result that it is unable to declare the 
revenues that it has actually obtained. The presumptions are based on theoretical 
sales strategies which bear no relation to the actual strategies and sales of 
producers, whereas the provisions of Regulation 2022/1854 appear to indicate that 
the calculation of surplus revenues is based on market receipts actually obtained. 
The referring court relies, in that regard, on the wording of the following 
provisions of that regulation (emphasis added by the referring court): 
– Article 2(5) defines ‘market revenue’ as ‘realised income a producer receives 
in exchange for the sale and delivery of electricity in the Union, regardless of 
the contractual form in which such exchange takes place, including power 
purchase agreements and other hedging operations against fluctuations in the 
wholesale electricity market and excluding any support granted by Member 
States’; 
– Article 2(9) defines ‘surplus revenues’ as ‘a positive difference between the 
market revenues of producers per MWh of electricity and the cap on market 
revenues of 180 EUR per MWh of electricity provided for in Article 6(1)’; 
– Article 6, entitled ‘Mandatory cap on market revenues’, provides: 
‘1. Market revenues of producers obtained from the generation of 
electricity from the sources referred to in Article 7(1) shall be capped to a 
maximum of 180 EUR per MWh of electricity produced. 
2. Member States shall ensure that the cap on market revenues targets all 
the market revenues of producers […]’; 
– Article 7, entitled ‘Application of the cap on market revenues to electricity 
producers’, provides: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-633/23 
 
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‘The cap on market revenues provided for in Article 6 shall apply to the 
market revenues obtained from the sale of electricity produced from the 
following sources: […]’. 
34 Moreover, the very philosophy of the system introduced, namely the 
establishment of a cap on market revenues and the possibility for the Member 
States of collecting revenues higher than that cap, appears to relate necessarily to 
revenues actually realised. The collection of unrealised revenue might appear to 
be a contradiction. 
35 According to the referring court, this seems to be confirmed in particular by 
recital 30 of Regulation 2022/1854: 
‘The cap on market revenues should be set on market revenues rather than on total 
generation revenues (including other potential sources of revenues such as feed-in 
premium), to avoid significantly impacting the initial expected profitability of a 
project. Regardless of the contractual form in which the trade of electricity may 
take place, the cap on market revenues should apply to realised market 
revenues only. This is necessary to avoid harming producers who do not 
actually benefit from the current high electricity prices due to having hedged 
their revenues against fluctuations in the wholesale electricity market. Hence, to 
the extent that existing or future contractual obligations, such as renewable 
power purchase agreements and other types of power purchase agreements or 
forward hedges, lead to market revenues from the production of electricity up 
to the level of the cap on market revenues, such revenues should remain 
unaffected by this Regulation. The measure introducing the cap on market 
revenues should therefore not deter market participants from entering into such 
contractual obligations.’ (emphasis added by the referring court). 
36 That court points out that recital 37 states, on the other hand, that: 
‘In order to ensure an effective enforcement of the cap on market revenues, the 
producers, intermediaries and relevant market participants should provide the 
necessary data to the competent authorities of Member States and, where 
appropriate, to the system operators and nominated electricity market operators. 
In view of the large number of individual transactions for which competent 
authorities of Member States have to ensure the enforcement of the cap on 
market revenues, those authorities should have the possibility to use 
reasonable estimates for the calculation of the cap on market revenues.’ 
(emphasis added by the referring court). 
37 Besides the fact that the referring court does not see how a recital may override 
the provisions of a regulation, it is still not convinced that the possibility 
mentioned of allowing the Member States to use estimates authorises them to 
provide for a system based solely on irrebuttable presumptions or on partly 
rebuttable presumptions in a manner which allows (irrebuttable) elements 
ELECTRABEL AND OTHERS 
 
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theoretically predetermined by the Member States to remain, regardless of the 
revenues actually obtained. 
38 As to the arguments put forward by the CREG and the Belgian State regarding 
technical difficulties and alleviation of the administrative burden of debtors, the 
referring court considers that, although they may justify the use of presumptions 
(or rather estimates), they cannot explain the irrebuttable nature of those 
presumptions and debtors should be authorised to document their real sales 
strategies and their actual revenues, in any event where a link can be established 
between technical installations and sales conditions. 
39 The referring court also notes that it is not in any way apparent from the 
Commission’s report that all the Member States have adopted a system based on 
presumptions, Belgium appearing to be relatively alone in making that choice. 
40 The system of presumptions for the purpose of theoretically determining revenues 
used as a basis for calculating the levy, as introduced by Article 22b of the 
Electricity Law, on which the contested decision is based, raises the question of 
how to interpret Articles 6, 7 and 8, read in conjunction with Article 2(5) and (9) 
of Regulation 2022/1854, in order to establish whether those provisions authorise 
such a system. The referring court therefore considers it necessary, in order to 
deliver its judgment, to seek a ruling from the Court on that point. 
The period covered by the contested decision 
41 Some applicants rely on the illegality of the contested decision inasmuch as it 
establishes a model declaration and the format of documents to be submitted ‘for 
the period from 1 August to 31 December 2022 inclusive’, whereas, under 
Article 22(2)(c), Regulation 2022/1854 imposes a cap on revenues only from 
1 December 2022 (unlike the proposal for a regulation which allowed Member 
States to provide for early application). 
42 They claim that early application of the cap constitutes an infringement of the 
general EU law principles of legal certainty and legitimate expectations. Such 
early application has, moreover, considerable practical consequences, since the 
month of August 2022 was the month when electricity prices were at their highest. 
43 They add that the legislature did not state why it intended to give early effect to 
Regulation 2022/1854. 
44 The CREG contends that, in the area of economic policy, the European Union’s 
intervention (in this case, that of the Council under Article 122(1) TFEU in the 
event of difficulties in the supply of certain products, notably in the area of 
energy) is limited to coordination of economic policies which leaves intact the 
sovereign power of Members States in the field of taxation, with the result that the 
Belgian national legislature could intervene in that field by adopting an 
‘additional’ measure by virtue of its fiscal autonomy. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-633/23 
 
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45 Moreover, Regulation 2022/1854 does not, itself, bring about uniform taxation of 
surplus revenues, but is limited to coordinating the reactions of Member States, 
which continue to enjoy a broad discretion to make an effective response to the 
situation, in view of the specific characteristics of their national energy markets. 
46 The Belgian State submits that that regulation did not prohibit Belgium from 
adopting tax measures applicable to a period before 1 December 2022, in this 
case, the period beginning on 1 August 2022. 
47 The legitimacy of Belgium’s exercise of its own fiscal powers in respect of that 
period is consistent with the principles of subsidiarity and proportionality. 
48 The Belgian State also refers to Article 8(1) of Regulation 2022/1854, under 
which Member States may ‘maintain or introduce measures that further limit the 
market revenues of producers generating electricity from the sources listed in 
Article 7(1), including the possibility to differentiate between technologies, as 
well as the market revenues of other market participants, including those active in 
electricity trading’, and hence also extend the cap to a period earlier than that 
provided for in that regulation. 
49 The fact that the possibility of voluntary early application of that regulation 
provided for in the proposal for a regulation was not retained in the final text may 
be explained by the redundancy of such an express provision and does not 
constitute evidence that the EU legislature intended to prohibit earlier application 
of the revenue cap system. 
50 The referring court finds that the period referred to in the contested decision 
follows from Article 22b(1) of the Electricity Law, which provides that ‘this 
article establishes a cap on revenues […] realised between 1 August 2022 and 
30 June 2023 […]’ and that the preamble to that law states that it ‘ensures the 
partial implementation of […] Regulation [2022/1854]’, since the ‘partial’ nature 
of the implementation is apparent from the fact that the Law of 16 December 2022 
is only intended to ensure the implementation of Regulation 2022/1854 as regards 
electricity (Chapter II of that regulation), and not as regards petroleum, gas and 
coal (Chapter III of that regulation). 
51 The referring court notes that the Belgian legislature did not state the reason why 
it intended to set the date of entry into force of the levy on a date other than that 
provided for in Regulation 2022/1854, and that the argument put forward by the 
CREG and the Belgian State that the levy system is hybrid in nature (national 
measure from 1 August to 30 November 2022, followed by implementation of 
Regulation 2022/1854 from 1 December 2022) is also not apparent from an 
examination of the travaux préparatoires. 
52 According to the referring court, Article 22(2) of the regulation which, by 
establishing the date of entry into force of the cap on surplus revenues as 
1 December 2022, ensures coordination between the Member States, may 
preclude national measures implementing the system from an earlier date. 
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53 That court refers in that regard to recital 11 of that regulation, which states that 
‘uncoordinated caps on market revenues from electricity […] may lead to 
significant distortions between generators in the Union’. It also refers to the 
principles of the primacy and effectiveness of EU law and to the principle of 
sincere cooperation between the European Union and the Member States. 
54 As regards Article 8(1)(a) of Regulation 2022/1854, it is not clear to the referring 
court whether the possibility available to the Member States of ‘maintain[ing] or 
introduc[ing] measures that further limit the market revenues of producers 
generating electricity’ includes that of implementing a cap system before the entry 
into force of that regulation, precisely because the provisions of that regulation 
relating to the cap (including Article 8 thereof) apply only from 1 December 2022 
to 30 June 2023. 
55 In those circumstances, the referring court considers it necessary to request a 
ruling from the Court on the interpretation of Articles 6, 7, 8 and 22 of Regulation 
2022/1854, together with the principles of the primacy and effectiveness of EU 
law and the principle of sincere cooperation, in order to determine whether those 
provisions preclude national measures providing for the implementation of a cap 
on the surplus revenues of electricity producers from a date earlier than the date 
provided for in that regulation. 
Questions referred for a preliminary ruling 
(1) Must Articles 6, 7 and 8 of Council Regulation 2022/1854 of 6 October 
2022 on an emergency intervention to address high energy prices, read in 
conjunction with Article 2(5) and (9) thereof, in the light of its recitals as a 
whole, and in conjunction with, in particular, Article 288 TFEU and 
Article 6 TEU, be interpreted as precluding the application of national 
measures, such as those contained in Article 22b of the Electricity Law, and 
in particular the second subparagraph of paragraph 5 thereof, which provide 
that the cap laid down in Article 6 of the regulation is to be reflected in the 
form of a levy on surplus revenues of electricity producers, where the 
surplus nature of the revenues in respect of the cap set is established on the 
basis of market revenues determined, for certain installations, on the basis of 
irrebuttable presumptions calculating theoretical revenues (see points 1 and 
2 of the second subparagraph of Article 22b(5) of the Electricity Law), 
preventing the debtors of the levy from declaring and being assessed on the 
basis of their actual revenues? 
(2) Must Articles 6, 7 and 8 of Council Regulation 2022/1854 of 6 October 
2022 on an emergency intervention to address high energy prices, read in 
conjunction with Article 2(5) and (9) thereof, in the light of its recitals as a 
whole, and in conjunction with, in particular, Article 288 TFEU and 
Article 6 TEU and with the principle of proportionality, be interpreted as 
precluding the application of national measures, such as those contained in 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-633/23 
 
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Article 22b of the Electricity Law, in particular the second subparagraph of 
paragraph 5 thereof, which provide that the cap laid down in Article 6 of the 
regulation is to be reflected in the form of a levy on surplus revenues of 
electricity producers, where the surplus nature of the revenues in respect of 
the cap set is established on the basis of market revenues determined, for 
certain installations (see points 3, 4, 5 and 6 of the second subparagraph of 
Article 22b(5) of the Electricity Law), on the basis of presumptions 
presented as rebuttable but which can be rebutted only, first, by the 
provision of evidence of their actual revenues from all their installations, 
including installations not coming within the scope of the regulation, and, 
second, by the continued recourse to certain presumptions, thereby 
preventing debtors of the levy from declaring and being assessed on the 
basis of their actual revenues? 
(3) Must Articles 6, 7, 8 and 22 of Council Regulation 2022/1854 of 6 October 
2022 on an emergency intervention to address high energy prices, read in 
conjunction with the principles of the primacy and effectiveness of EU law 
and the principle of sincere cooperation (Article 4(3) TEU), with, in 
particular, Article 288 TFEU, and in the light of its recitals, be interpreted as 
precluding the application of national measures taken after the entry into 
force of that regulation, such as Article 22b(1) of the Electricity Law, 
inserted by the Law of 16 December 2022, and providing for the 
implementation of the system applying a cap on electricity producers’ 
market revenues from a date earlier than 1 December 2022, such as the date 
of 1 August 2022? 
Request for an expedited procedure 
56 Since, in its examination of the applications submitted to it, the referring court is 
sitting, in accordance with Article 29a of the Electricity Law, in summary 
proceedings, it requests an expedited procedure, in accordance with Article 105 of 
the Rules of Procedure of the Court of Justice.