Provisional text
JUDGMENT OF THE COURT (Fourth Chamber)
22 January 2026 (*)
( Reference for a preliminary ruling – Internal market for electricity – Directive (EU) 2019/944 – Article 5 – Market-based supply prices – Directive (EU) 2018/2001 – Promotion of the use of energy from renewable sources – Regulation (EU) 2022/1854 – Emergency intervention to address high energy prices – Articles 6 and 7 – Cap on the market revenues obtained by electricity producers using certain renewable energy sources – Article 8 – National measures further limiting market revenues – Conditions – National legislation not guaranteeing that producers retain 10% of surplus revenues above the cap – Preservation of investments in the renewable energy sector – No cap on the revenues obtained from the sale of energy produced from hard coal – No legislation differentiating between different sources of production )
In Case C‑423/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy, Italy), made by decision of 7 July 2023, received at the Court on 10 July 2023, in the proceedings
Secab Soc. coop.
v
Autorità di Regolazione per Energia Reti e Ambiente (ARERA),
Gestore dei servizi energetici (GSE) SpA,
intervening parties:
Presidenza dei Consiglio dei Ministri,
Ministero della Transizione ecologica,
Ministero dello Sviluppo economico,
Associazione Italia Solare ETS,
Assoidroelettrica,
Elettricità Futura – Unione delle imprese elettriche italiane,
THE COURT (Fourth Chamber),
composed of I. Jarukaitis (Rapporteur), President of the Chamber, M. Condinanzi and N. Jääskinen, Judges,
Advocate General: A. Rantos,
Registrar: G. Chiapponi, Administrator,
having regard to the written procedure and further to the hearing on 6 November 2024,
after considering the observations submitted on behalf of:
–        Secab Soc. coop., by C. Mainardis, M. Nussi and A. Travi, avvocati,
–        Gestore dei servizi energetici (GSE) SpA, by D. Gallo, G. Pellegrino, G. Vercillo and A. Zoppini, avvocati,
–        Associazione Italia Solare ETS, by G. Cassar, avvocata,
–        Assoidroelettrica, by G.B. Conte and G. Giordano, avvocati,
–        Elettricità Futura – Unione delle imprese elettriche italiane, by C. Martorana, avvocata,
–        the Italian Government, by S. Fiorentino and G. Palmieri, acting as Agents, and by L. Delbono and R. Guizzi, avvocati dello Stato,
–        the Belgian Government, by P. Cottin and M. Jacobs, acting as Agents, and by K. Decroix and B. Martel, advocaten,
–        the Greek Government, by K. Boskovits and C. Kokkosi, acting as Agents,
–        the European Commission, by O. Beynet, B. De Meester, T. Scharf and A. Spina, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 6 February 2025,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Article 5(4) 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 (OJ 2019 L 158, p. 125), of recitals 2, 3 and 12 of Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (OJ 2018 L 328, p. 82), and of recitals 27 to 29, 39, and 41, Article 6(1), Article 7(1)(h) to (j) and Article 8(1)(a) and (d) and (2) of Council Regulation (EU) 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices (OJ 2022 L 261 I, p. 1).
2        The request has been made in proceedings between Secab Soc. coop., a cooperative undertaking active in the electricity
generation sector, and the Autorità di Regolazione per Energia Reti e Ambiente (ARERA) Regulatory Authority for Energy, Networks and the Environment, Italy) and Gestore dei servizi energetici (GSE) SpA, a company established under Italian law which is wholly owned by the Italian State, through the Ministero dell’Economia e delle Finanze (Ministry of Economy and Finance, Italy), responsible for promoting and supporting the development of renewable energy and energy efficiency in the framework of the national energy policy, concerning the legality of national rules setting a cap on market revenues from the sale of electricity produced from certain renewable energy sources.
Legal context
European Union law
Directive 2018/2001
3        Recitals 2, 3 and 12 of Directive 2018/2001 state:
‘(2)      In accordance with Article 194(1) [TFEU], promoting renewable forms of energy is one of the goals of the [European] Union energy policy. That goal is pursued by this Directive. The increased use of energy from renewable sources or “renewable energy” constitutes an important part of the package of measures needed to reduce greenhouse gas emissions and comply with the Union’s commitment under the 2015 Paris Agreement on Climate Change following the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change …, and with the Union 2030 energy and climate framework, including the Union’s binding target to cut emissions by at least 40% below 1990 levels by 2030. The Union’s binding renewable energy target for 2030 and Member
States’ contributions to that target, including their baseline shares in relation to their national overall targets for
2020, are among the elements which have an overarching importance for the Union’s energy and environmental policy. Other such elements are contained in the framework set out in this Directive, for instance, for the development of renewable heating and cooling and the development of renewable transport fuels.
(3)      The increased use of energy from renewable sources also has a fundamental part to play in promoting the security of energy supply, sustainable energy at affordable prices, technological development and innovation as well as technological and industrial leadership while providing environmental, social and health benefits as well as major opportunities for employment and regional development, especially in rural and isolated areas, in regions or territories with low population density or undergoing partial deindustrialisation.
…
(12)      In order to support Member
States’ ambitious contributions to the Union target, a financial framework aiming to facilitate investments in renewable energy projects in those Member
States should be established, including through the use of financial instruments.’
Directive 2019/944
4        Article 5 of Directive 2019/944, entitled ‘Market-based supply prices’, provides:
1.      Suppliers shall be free to determine the price at which they supply electricity to customers. Member States shall take appropriate actions to ensure effective competition between suppliers.
…
3.      By way of derogation from paragraphs 1 and 2, Member States may apply public interventions in the price setting for the supply of electricity to energy poor or vulnerable household customers. Such public interventions shall be subject to the conditions set out in paragraphs 4 and 5.
4.      Public interventions in the price setting for the supply of electricity shall:
(a)      pursue a general economic interest and not go beyond what is necessary to achieve that general economic interest;
(b)      be clearly defined, transparent, non-discriminatory and verifiable;
(c)      guarantee equal access for Union electricity undertakings to customers;
(d)      be limited in time and proportionate as regards their beneficiaries;
(e)      not result in additional costs for market participants in a discriminatory way.
…’
Regulation 2022/1854
5        Recitals 1, 27 to 29 and 39 to 41 of Regulation 2022/1854 stated:
‘(1)      Very high prices in electricity markets have been observed since September 2021. …
…
(27)      The level at which the cap on market revenues is set should not jeopardise the ability of the producers to which it is applied, including renewable energy producers, to recover their investment and operating costs and should preserve and incentivise future investments in the capacity needed for a decarbonised and reliable electricity system. The cap on market revenues, being a uniform cap across the Union, is best suited to preserve the functioning of the internal electricity market, as it maintains price-based competition between electricity producers based on different technologies, in particular for renewables.
(28)      While occasional and short-term peaks on prices can be considered a normal feature in an electricity market and may be useful for some investors to recover their generation investment, the extreme and lasting price increase observed since February 2022 is markedly different from a normal market situation of occasional peak prices. Therefore, the cap on market revenues should not be set below the reasonable expectations of market participants as to the average level of electricity prices in the hours during which the demand for electricity was at its highest, before [the Russian Federation’s] war of aggression against Ukraine. Before February 2022, the average peak prices in the electricity wholesale market were significantly and consistently expected below 180 EUR per [megawatt-hour (MWh)] across the Union in the last decades, despite the differences in electricity prices between regions in the Union. Since the initial investment decision of market participants was taken based on an expectation that, on average, the prices would be lower than that level during peak hours, setting the cap on market revenues at a 180 EUR per MWh constitutes a level well above those initial market expectations. By leaving a margin on the price that investors could reasonably have expected, it is necessary to ensure that the cap on market revenues does not counteract the initial assessment of investment profitability.
(29)      Moreover, the cap on market revenues of 180 EUR per MWh is consistently higher, including a reasonable margin, than the current levelised cost of energy (LCOE) for the relevant generation technologies, allowing producers to which it applies to cover their investments and operating costs. Considering that the cap on market revenues leaves a considerable margin between the reasonable LCOE and the cap on market revenues, it can therefore not be expected to impair the investment in new inframarginal capacities.
…
(39)      To account for security of supply concerns, Member States should have the possibility to set the cap on market revenues in a way that allows the electricity producers to retain 10% of the surplus revenues above the cap on market revenues.
(40)      Given that the generation mix and the cost-structure of power-generating facilities differ greatly among Member States, they should be allowed to maintain or introduce national crisis measures under specific conditions.
(41)      In particular, Member States should retain the possibility to further limit the revenues of the producers to which the cap on market revenues applies and to set a specific cap on the market revenues obtained from the sale of electricity produced from hard coal, the price of which can be significantly lower than the price of marginal technologies in some Member States. In order to ensure legal certainty, Member States should also be allowed to maintain or introduce national crisis measures, which limit the market revenues of producers other than those subject to the Union-wide cap on market revenues.’
6        Article 6 of that regulation, entitled ‘Mandatory cap on market revenues’, provided, in paragraphs 1 and 2 thereof:
‘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 and, where relevant, intermediaries participating in electricity wholesale markets on behalf of producers, regardless of the market timeframe in which the transaction takes place and of whether the electricity is traded bilaterally or in a centralised marketplace.’
7        Article 7 of that regulation, entitled ‘Application of the cap on market revenues to electricity producers’, provided, in paragraphs 1 and 5 thereof:
‘1.      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:
(a)      wind energy;
(b)      solar energy (solar thermal and solar photovoltaic);
(c)      geothermal energy;
(d)      hydropower without reservoir;
(e)      biomass fuel (solid or gaseous biomass fuels), excluding biomethane;
(f)      waste;
(g)      nuclear energy;
(h)      lignite;
(i)      crude petroleum products;
(j)      peat.
…
5.      Member States may decide that the cap on market revenues only applies to 90% of the market revenues exceeding the cap on market revenues provided for in Article 6(1).
8        According to Article 8 of the same regulation, entitled ‘National crisis measures’:
‘1.      Member States may:
(a)      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;
…
(c)      maintain or introduce national measures to limit the market revenues of producers generating electricity from sources not referred to in Article 7(1);
(d)      set a specific cap on the market revenues obtained from the sale of electricity produced from hard coal;
…
2.      The measures referred to in paragraph 1 shall, in line with this Regulation:
(a)      be proportionate and non-discriminatory;
(b)      not jeopardise investment signals;
(c)      ensure that the investments and operating costs are covered;
(d)      not distort the functioning of electricity wholesale markets, and in particular, not affect the merit order and the price formation on the wholesale market;
(e)      be compatible with Union law.’
9        Article 10 of Regulation 2022/1854, entitled ‘Distribution of the surplus revenues’, provided, in paragraph 1 thereof:
‘Member States shall ensure that all surplus revenues resulting from the application of the cap on market revenues are used to finance measures in support of final electricity customers that mitigate the impact of high electricity prices on those customers, in a targeted manner.’
10      Article 22 of that regulation, entitled ‘Entry into force and application’, provided:
‘1.      This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
2.      Without prejudice to the obligation to ensure the distribution of surplus revenues in accordance with Article 10, and to use the proceeds from the temporary solidarity contribution in accordance with Article 17, and without prejudice to the reporting obligation referred to in Article 20(2), this Regulation shall apply until 31 December 2023, subject to the following:
…
(c)      Articles 6, 7, and 8 shall apply from 1 December 2022 to 30 June 2023;
…’
Italian law
Decree-Law No 4/2022
11      Decree-Law No 4/2022, converted, with amendments, by legge n. 25 – Conversione in legge, con modificazioni, del decreto-legge 27 gennaio 2022, n. 4, recante misure urgenti in materia di sostegno alle imprese e agli operatori economici, di lavoro, salute e servizi territoriali, connesse all’emergenza da COVID-19, nonché per il contenimento degli effetti degli aumenti dei prezzi nel settore elettrico (Law No 25 converting into law, with amendments, Decree-Law No 4 on urgent measures to support businesses and economic operators, labour, health and local services, in the context of the COVID-19 crisis, and to contain the effects of price increases in the electricity sector), of 28 March 2022 (GURI No 73, of 28 March 2022, Ordinary Supplement No 13) (‘Decree-Law No 4/2022’), contains an Article 15-bis, entitled ‘Additional measures relating to electricity generated by plants using renewable sources’. That Article 15-bis provided:
‘1.      From 1 February 2022 until 31 December 2022, a two-way compensation mechanism shall be applied to energy prices for electricity fed into the grid by:
(a)      photovoltaic plants with a capacity of more than 20 kW subject to fixed premiums resulting from the feed-in tariff mechanism (Conto Energia), which are not dependent on market prices;
(b)      plants with a capacity of more than 20 kW using solar, hydroelectric, geothermal and wind energy sources and not covered by incentive mechanisms, commissioned before 1 January 2010.
…
3.      For the purposes of paragraph 1, GSE shall calculate the difference between the values referred to in points (a) and (b) below:
(a)      a reference price equal to that indicated in the table [annexed to this] decree-law, for each market zone[, of between EUR 56
and EUR 58 per MWh (except in the islands of Sardinia and Sicily, for which it is set at
EUR 61 per MWh and EUR 75
per MWh respectively)];
(b)      a market price equal to:
(1)      for the plants referred to in paragraph 1(a) and for the plants referred to in paragraph 1(b) using solar, wind, geothermal and run-of-river water energy sources, the hourly price of electricity in the market zone or, for supply contracts concluded before 27 January 2022 which do not meet the conditions laid down in paragraph 7, the price indicated in those contracts;
(2)      for the plants referred to in paragraph 1(b) other than those referred to in point 1 above, the monthly arithmetic average of the hourly electricity prices in the market zones, or, for supply contracts concluded before 27 January 2022 which do not meet the conditions laid down in paragraph 7, the price indicated in those contracts.
4.      If the difference referred to in paragraph 3 is positive, GSE shall pay the corresponding amount to the producer. If that difference is negative, GSE shall make a balance adjustment or claim the corresponding amount from the producer.
…’
12      Article 11(1) of Decree-Law No 115/2022, converted, with amendments, by legge n. 142 – Conversione in legge, con modificazioni, del decreto-legge 9 agosto 2022, n. 115, recante misure urgenti in materia di energia, emergenza idrica, politiche sociali e industriali (Law No 142, amending Decree-Law No 115 of 9 August 2022 on urgent measures in the field of energy, water crisis, social and industrial policies) of 21 September 2022 (GURI No 221 of 21 September 2022, p. 1), extended until 30 June 2023 the application of the compensation mechanism provided for in that Article 15-bis.
Law No 197/22
13      Legge n. 197 – Bilancio di previsione dello Stato per l’anno finanziario 2023 e bilancio pluriennale per il triennio 2023-2025 (Law No 197 on the national provisional budget for the 2023 financial year and multi-year budget for the three-year period 2023-2025) of 29 December 2022 (GURI No 303 of 29 December 2022, Ordinary Supplement No 43) (‘Law No 197/22’), provides, in Article 1(30) to (33) thereof:
‘30.      Pursuant to Regulation [2022/1854], from 1 December 2022 until 30 June 2023, a cap shall be applied to the market revenues obtained by electricity producers, through a one-way compensation mechanism, in respect of electricity fed into the grid by:
(a)      plants using renewable sources which do not fall within the scope of Article 15-bis
of [Decree-Law No 4/2022];
(b)      plants using non-renewable sources referred to in Article 7(1) of Regulation [2022/1854].
31.      The cap on market revenues shall apply to all market revenues obtained by electricity producers from the plants referred to above and, where applicable, by intermediaries participating in wholesale electricity markets on behalf of those producers, regardless of the market timeframe in which the transaction generating the revenue takes place and of whether the electricity is traded bilaterally or on a centralised marketplace.
32.      For the purposes of paragraph 30, [GSE] shall calculate the difference between the values referred to in points (a) and (b) below:
(a)      a reference price of
EUR 180 per MWh or, for sources whose production costs are higher than that price, a technology value set according to criteria laid down by ARERA …, taking into account investment and operating costs and a fair return on investments. To that end, in the case of plants encouraged by one-way mechanisms, other than those replacing green certificates, the reference price is equal to the maximum value between the amount of
EUR 180 per MWh and the applicable tariff;
(b)      a market price equal to the monthly average hourly price in the market zone, determined as the weighted average for plants using intermittent energy sources, on the basis of the production profile of each plant, and as the arithmetic average for plants using non-intermittent energy sources, or, in the case of supply contracts concluded before the date of entry into force of this Law No 197/22[, that is to say, before 1 January 2023,] which do not fall within the situations referred to in paragraph 37, at the price indicated in those contracts.
33.      If the difference referred to in paragraph 32 is negative, GSE shall make a balance adjustment or claim the corresponding amount from the producer.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
14      Secab manages run-of-river hydroelectric power plants. As that company falls within the scope of Article 15-bis of Decree-Law No 4/2022, it has been subject to the revenue-capping measure provided for in that provision. Having received, in that context, several invoices from GSE, Secab brought an action before the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy, Italy), which is the referring court, seeking annulment, inter alia, of ARERA’s decision implementing that provision, of the technical rules relating to the application of the said provision adopted by GSE and of the invoices issued to it by GSE on 18 October and 15 November 2022 pursuant to the same provision. In support of its action, Secab claims that Article 15-bis of Decree-Law No 4/2022 is contrary to EU law.
15      The referring court notes that the implementation of Article 15-bis, initially covering the period between 1 February and 31 December 2022, was extended, by Decree-Law No 115/2022, until 30 June 2023. It also observes that Regulation 2022/1854 entered into force only on 8 October 2022, that it
set a higher revenue cap and a broader scope than those introduced by Article 15-bis and that it is paragraphs 30 to 38 of Article 1 of Law No 197/2022 which implemented, for the period from 1 December 2022 to 30 June 2023, Articles 6 to 8 of that regulation, excluding, however, plants using sources
of renewable energy which were already covered by that same Article 15-bis. It states that, consequently, although Article 15-bis was adopted prior to Regulation 2022/1854, it constituted, in essence, the provision of national law implementing that regulation as regards energy generated from renewable sources referred to in that Article 15-bis.
16      The referring court adds that Article 15-bis, like Regulation 2022/1854, was adopted with the aim of temporarily limiting the extraordinary market revenues obtained by energy producers whose costs are not affected by fluctuations in natural gas prices, by applying a cap to those extraordinary revenues and distributing the corresponding amounts to end customers. However, the referring court is uncertain about the specific procedures adopted by the Italian legislature to introduce such a revenue cap.
17      In the first place, that court is uncertain as to the amount of the cap provided for in Article 15-bis of Decree-Law No 4/2022. In that regard, first, the referring court notes that, although the reference price referred to in paragraph 3(a) of that Article 15-bis, of between EUR 56
per MWh of electricity produced and
EUR 75
per MWh of electricity produced, is significantly lower than set by the European Union and far removed from it, which is
EUR 180 per MWh of electricity produced, it is, according to ARERA, fair. The Italian legislature determined that price by using an arithmetic average of the prices recorded in each market zone between 1 January 2010 and 31 December 2020, adjusted for inflation. However, the referring court considers that, according to recital 28 of Regulation 2022/1854, for the purposes of setting the cap on market revenues, reference should have been made to the hours during which demand was at its highest level, before the Russian Federation’s war of aggression against Ukraine. In addition, during the year 2020, characterised by disruptions linked to the COVID-19 epidemic, the single national price reached a historically low level, as low as EUR 38.92
per MWh of electricity produced, whereas, in the year 2021, which was not taken into account in that average, that price increased significantly, up to
EUR 125
per MWh of electricity produced, just as it did for the first quarter of 2022, where it reached EUR 308
per MWh of electricity produced. In those circumstances, the referring court has doubts as to whether the cap provided for in the said Article 15-bis is proportionate and reasonable, given that it does not guarantee that producers may retain 10% of the revenue above that cap, as recital 39 of that regulation requires.
18      Second, according to that court, Article 15-bis of Decree-Law No 4/2022 does not appear to be capable of preserving investments in the renewable energy sector, in particular as regards the ability to make such investments in the future in order to increase the use of renewable energy sources. In that regard, it refers, in particular, to recital 2 of Directive 2018/2001, which emphasises the importance of replacing fossil fuel energy sources and encouraging the use of renewable sources, as well as to recitals 28 and 29 of Regulation 2022/1854, from which it is apparent that it is necessary to set the cap in such a way as not to affect the initial assessment of investment profitability. The Italian legislature, however, appears to have failed to take account of those requirements when determining the cap provided for in that Article 15-bis.
19      In the second place, the referring court observes, first, that Regulation 2022/1854 subjects to the cap set in Article 6 thereof energy producers using lignite, crude petroleum and peat and provides, in recital 41 and Article 8(1)(d) thereof, that Member States should set a specific cap for producers using hard coal. Article 15-bis of Decree-Law No 4/2022, meanwhile, does not lay down any rules applicable to those producers, who have therefore benefited from an unjustified advantage. Second, it notes that, although Article 8(1)(a) of Regulation 2022/1854 allows Member States to differentiate the applicable scheme according to the various energy sources, that Article 15-bis established a single cap for all the categories of producers covered by it, even though production costs vary from one plant category to another.
20      In those circumstances, the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Do Article 5(4) of Directive [2019/944], recitals 3 and 12 of Directive [2018/2001], and recitals 27 [to]
29 and 39, Article 6(1) and Article 8(2) of Regulation [2022/1854] preclude a national rule which sets a cap on market revenue obtained from the sale of electricity in the manner provided for in Article 15[-]bis of Decree-Law No 4[/2022] which does not guarantee that producers may retain 10% of their revenues above that cap?
(2)      Do Article 5(4) of Directive [2019/944], recitals 2, 3 and 12 of Directive [2018/2001], recitals 27 [to]
29 and 39, Article 6(1) and Article 8(2)(b) and (c) of Regulation [2022/1854] preclude a national rule which sets a cap on market revenues obtained from the sale of electricity in the manner provided for in Article 15[-]bis of Decree-Law No 4[/2022] which does not preserve and incentivise investments in the renewable energy sector?
(3)      Do recital 3 of Directive [2018/2001], and recitals 27 and 41, Article 7(1)(h) [to] (j) and Article 8(1)(a) and (d) and (2) of Regulation [2022/1854] preclude a national rule which sets a cap on market revenues obtained from the sale of electricity in the manner provided for in Article 15[-]bis
of Decree-Law No 4[/2022] which does not provide for any specific cap on the revenues obtained from the sale of energy produced from hard coal, or a regulation differentiating between different sources of production?’
Admissibility
21      GSE and the Italian Government submit that the request for a preliminary ruling is inadmissible on the ground that it does not contain all the factual and legal material necessary for the Court to give a useful answer, such that it does not satisfy the requirements set out in Article 94 of the Rules of Procedure of the Court of Justice. In particular, GSE submits that, for each of the questions being asked, the referring court failed to set out certain factual or legal circumstances which are nevertheless decisive for the correct assessment of the doubts expressed by that court, which, moreover, are largely inspired by the considerations set out by Secab in its application before the same court.
22      According to settled case-law, which is reflected in Article 94(a) and (b) of the Rules of Procedure, 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. Furthermore, it is essential, as stated in Article 94(c) of the Rules of Procedure, that the request for a preliminary ruling itself contain a statement of the reasons which prompted the referring court or tribunal to enquire about the interpretation or validity of certain provisions of EU law, and the connection between those provisions and the national legislation applicable to the dispute in the main proceedings (judgment of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 59 and the case-law cited).
23      In the present case, the order for reference fulfils those requirements. It contains a detailed description of the relevant factual and legal context and, for each of the questions being asked, the referring court has set out the reasons why it considers that the national legislation at issue in the main proceedings is liable to infringe the provisions of EU law to which it refers.
24      Furthermore, national courts have the widest discretion in referring questions to the Court involving interpretation of relevant provisions of EU law. Indeed, it is for the national court hearing the main proceedings only, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. It follows that questions raised by national courts enjoy a presumption of relevance and that the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation sought bears no relation to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to those questions (see, to that effect, judgments of 16 December 1981, Foglia, 244/80, EU:C:1981:302, paragraphs 15 and 18, and of 1 August 2025, Voore Mets and Lemeks Põlva, C‑784/23, EU:C:2025:609, paragraph 31).
25      It follows that the fact that the considerations set out by the referring court are largely inspired by those put forward before it by Secab, assuming it were established, is not such as to establish the inadmissibility of the request for a preliminary ruling, the conditions laid down in Article 94 of the Rules of Procedure being satisfied and none of the situations enabling the Court to refuse to rule on a question referred for a preliminary ruling, identified in the preceding paragraph of the present judgment, being present in the present case.
26      Furthermore, in so far as the Belgian Government challenges the admissibility of some of the questions referred in so far as they seek the interpretation of recitals of EU acts even though they have no binding legal force, suffice it to note that that fact alone is not capable of establishing the alleged inadmissibility (see, to that effect, judgments of 13 December 1989, Grimaldi, C‑322/88, EU:C:1989:646, paragraphs 7 and 8, and of 15 July 2021, FBF, C‑911/19, EU:C:2021:599, paragraphs 53 and 54).
27      The request for a preliminary ruling is, accordingly, admissible.
Consideration of the questions referred
The first question
28      As a preliminary matter, it should be recalled that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. The Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions (see judgments of 28 November 2000, Roquette Frères, C‑88/99, EU:C:2000:652, paragraph 18, and of 1 August 2025, Alace and Canpelli, C‑758/24 and C‑759/24, EU:C:2025:591, paragraph 44).
29      The fact that the referring court has formally referred, in its questions, to certain specific provisions of EU law does not prevent the Court from providing it with all the elements of interpretation which may be useful for the judgment in the main proceedings, by extracting from the body of material provided by that court, and in particular from the statement of reasons for the order for reference, the elements of EU law which require interpretation in the light of the subject matter of the dispute (see judgments of 29 November 1978, Redmond, 83/78, EU:C:1978:214, paragraph 26, and of 1 August 2025, Alace and Canpelli, C‑758/24 and C‑759/24, EU:C:2025:591, paragraph 45).
30      In the present case, it is apparent from the request for a preliminary ruling that the referring court seeks to obtain information enabling it to assess the compatibility with EU law of national legislation which was adopted prior to Regulation 2022/1854 and which applied from 1 February 2022 to 30 June 2023, providing for a cap on market revenue from the sale of electricity. In addition, it appears that, in order to answer the first question referred, it is also necessary to take into account Article 7(5) and Article 8(1) of Regulation 2022/1854, to which the referring court did not refer in the wording of that question.
31      It must therefore be considered
that, by its first question, the referring court asks, in essence, whether Article 5(4) of Directive 2019/944, recitals 3 and 12 of Directive 2018/2001 and Article 6(1) and Article 8 of Regulation 2022/1854, read in the light of Article 7(5) and recitals 27 to 29 and 39 thereof, must be interpreted as precluding national legislation adopted prior to Regulation 2022/1854 and which, for the period from 1 February 2022 to 30 June 2023, set a cap on the market revenues obtained by electricity producers from run-of-river hydroelectric
power plants without guaranteeing
that those producers retain 10% of their revenues exceeding that cap.
32      In that regard, it should
be recalled, in the first place, that Article 5 of Directive 2019/944 provides, in paragraph 1 thereof, that suppliers are to be free to determine the price at which they supply electricity to customers and that Member States are to take appropriate actions to ensure effective competition between suppliers. Paragraph 3 of that
Article 5 however states that, by way of derogation, particularly from that paragraph 1, Member States may apply public interventions in the price setting for the supply of electricity to energy poor or vulnerable household customers, subject to the conditions set out in paragraphs 4 and 5 of that Article 5.
33      Article 5(4) of Directive 2019/944 thus seeks to regulate Member States’ interventions in the setting of the prices at which electricity is sold by electricity suppliers to certain categories of customers. That provision is therefore unrelated to the setting of a cap on market revenues from the sale of electricity by certain producers.
34      It follows that that provision must be interpreted as not precluding national legislation such as that described in paragraph 31 of the present judgment.
35      In the second place, it must be recalled that the preamble to an EU act has no binding legal force (judgments of 19 November 1998, Nilsson and Others, C‑162/97, EU:C:1998:554, paragraph 54, and of 19 December 2024, Caisse d’allocations familiales des Hauts-de-Seine, C‑664/23, EU:C:2024:1046, paragraph 39). Recitals 3 and 12 of Directive 2018/2001 cannot therefore, as such, impose obligations, in particular on Member States. Consequently, they cannot preclude national legislation such as that described in paragraph 31 of the present judgment.
36      In any event, even assuming that, in referring to recitals 3 and 12 of Directive 2018/2001, the referring court seeks to obtain an interpretation of the provisions of that directive, it must be pointed out that recitals 3 and 12 merely set out general considerations relating, first, to the part that the increased use of energy from renewable sources can play, inter alia, in promoting the security of energy supply, sustainable energy at affordable prices and technological development as well as, second, the objective, in order to support Member States’ ambitious contributions to the EU target, of establishing a financial framework aiming to facilitate investments in renewable energy projects in those Member States. Those general considerations, however, do not relate to any specific provision of Directive 2018/2001 imposing a specific obligation on the Member States.
37      It follows from the foregoing that recitals 3 and 12 of Directive 2018/2001 must be interpreted as not precluding national legislation such as that described in paragraph 31 of the present judgment.
38      In the third place, it should be noted, first, that, under Article 22(2)(c) of Regulation 2022/1854, Articles 6 to 8 thereof were applicable from 1 December 2022 to 30 June 2023. It follows that, in any event, they cannot be interpreted as precluding national legislation such as that described in paragraph 31 of the present judgment for a period during which they were not applicable, that is to say, in the present case, during the period from 1 February 2022 to 30 November 2022.
39      Second, as regards the period at issue in the main proceedings during which those articles were applicable, it should be recalled that Article 6(1) of Regulation 2022/1854 provides that market revenues obtained by electricity producers from the sources referred to in Article 7(1) of that regulation are to be capped to a maximum of EUR 180
per MWh of electricity produced. Those sources include, in that Article 7(1)(d),
hydropower without reservoir.
40      Moreover, that
Article 7 states, in paragraph 5 thereof, that Member States may decide that the cap on market revenues only applies to 90% of the market revenues exceeding the cap on market revenues provided for in Article 6(1) of Regulation 2022/1854.
41      It follows that Member States must, inter alia, pursuant to that Article 6(1), read in conjunction with Article 7(1)(d) and (5), set a maximum cap of EUR 180
per MWh of electricity produced on the market revenues obtained by electricity producers using run-of-river hydroelectric power plants and that they are not obliged to apply that cap, but may choose to apply it to only 90% of the market revenues exceeding the cap provided for in that Article 6(1).
42      However, in the present case, it is common ground that the cap at issue in the main proceedings is not that of EUR 180
per MWh of electricity produced, but a cap lower than that provided for in that Article 6(1). In that regard, Article 8 of Regulation 2022/1854 lists, in paragraph 1 thereof, various national measures that Member States may adopt in the event of a crisis, which must then comply with the conditions set out in paragraph 2 of that Article 8.
43      In particular, Article 8(1)(a) of Regulation 2022/1854 provides, inter alia, that 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) of that regulation. As regards paragraph 2 of that Article 8, it states, in
point (a), that the measures referred to in paragraph 1 of the same Article 8 are to be proportionate and non-discriminatory, in point (b), that they are not to jeopardise investment signals, in
point (c), that they are to ensure that the investments and operating costs are covered, in point (d), that they are not to distort the functioning
of electricity wholesale markets, and in particular, not affect the merit order and the price formation on the wholesale market, and, in
point (e), that they are to be compatible with EU law.
44      Article 8 of Regulation 2022/1854 does not therefore impose an obligation on Member States to apply the cap which they would maintain or introduce under paragraph 1 of that Article 8 to only 90% of the revenue exceeding that cap. It follows that Regulation 2022/1854 cannot preclude national legislation which has set a cap on the market revenues obtained by electricity producers from run-of-river hydroelectric power plants on the ground that such legislation does not guarantee that those producers retain 10% of their revenues exceeding that cap.
45      In that regard, in view of the doubts expressed by the referring court, it should also be added that such legislation cannot be regarded as disproportionate, within the meaning of Article 8(2)(a) of that regulation, unless it is considered that, by confining itself to giving Member States the option set out in Article 7(5) of that regulation, the EU legislature itself infringed the principle of proportionality. According to a general principle of interpretation, a provision must be interpreted, as far as possible, in such a way as not to detract from its validity (judgments of 4 October 2001, Italy v Commission, C‑403/99, EU:C:2001:507, paragraph 37, and of 8 May 2025, Pielatak, C‑410/23, EU:C:2025:325, paragraph 66).
46      The interpretation adopted in paragraph 44 of the present judgment is, moreover, supported by the recitals of Regulation 2022/1854. According to recital 39
thereof, to account for security of supply concerns, Member States ‘should have the possibility’ to set the cap on market revenues in a way that allows the electricity producers to retain 10% of the surplus revenues above the cap on market revenues. That recital 39
thus confirms that, even in the context of the cap provided for in Article 6(1) of that regulation, Member States are not under the obligation to allow the producers concerned to retain 10% of the surplus revenues above that cap.
47      Moreover, with regard to recital 40 of Regulation 2022/1854, it states that, given that the generation mix and the cost-structure of power-generating facilities differ greatly among Member States, they should be allowed to maintain or introduce national crisis measures under specific conditions. Recital 41
of Regulation 2022/1854 states inter alia, in that regard, that Member States should retain the possibility to further limit the revenues of the producers to which the cap on market revenues applies. Thus, those recitals do not contain any indication that the Member States are required, in the context of the cap that they maintain or introduce under Article 8(1) of that regulation, to provide that the producers concerned may retain 10% of their revenue exceeding that cap.
48      The same is true of recitals 27 to 29 of Regulation 2022/1854, referred to by the referring court in its first question, which do not contain any further indication along the lines of the obligation envisaged by that court in the context of its first question.
49      It follows that, in so far as they are applicable ratione temporis, Article 6(1) and Article 8 of Regulation 2022/1854, read in the light of Article 7(5) and recitals 27 to 29 and 39 thereof, must be interpreted as not precluding national legislation such as that described in paragraph 31 of the present judgment.
50      In the light of all the foregoing considerations, the answer to the first question is that Article 5(4) of Directive 2019/944, recitals 3 and 12 of Directive 2018/2001 and Article 6(1) and Article 8 of Regulation 2022/1854, read in the light of Article 7(5) and recitals 27 to 29 and 39 thereof, must be interpreted as not precluding national legislation adopted prior to Regulation 2022/1854 and which, for the period from 1 February 2022 to 30 June 2023, set a cap on the market revenues obtained by electricity producers from run-of-river hydroelectric power plants without guaranteeing that those producers retain 10% of their revenues exceeding that cap.
The second question
51      In view of what has already been noted in paragraphs 28 to 30 of the present judgment, it must be considered that, by its second question, the referring court asks, in essence, whether Article 5(4) of Directive 2019/944, recitals 2, 3 and 12 of Directive 2018/2001 and Article 6(1) and Article 8(2)(b) and (c) of Regulation 2022/1854, read in the light of recitals 27 to 29 and 39 thereof, must be interpreted as precluding national legislation adopted prior to Regulation 2022/1854 and which, for the period from 1 February 2022 to 30 June 2023, set a cap on the market revenues obtained by electricity producers from run-of-river hydroelectric power plants by determining that cap on the basis of an arithmetic average of the prices recorded in the corresponding market zone during the period from 1 January 2010 to 31 December 2020, adjusted for inflation.
52      In that regard, it should, in the first place, be recalled that, for the same reasons as those already set out in paragraphs 32 and 33 of the present judgment, Article 5(4) of Directive 2019/944 must be interpreted as not precluding national legislation such as that described in the preceding paragraph of the present judgment.
53      In the second place, for the same reasons as those already set out in paragraphs 35 and 36 of the present judgment, recitals 3 and 12 of Directive 2018/2001 must be interpreted as not precluding national legislation such as that described in paragraph 51 of the present judgment. The same is true of recital 2 of that directive. Apart from the fact that the latter recital has no binding legal force, it merely emphasises that the objective of promoting renewable forms of energy is one of the goals of the EU energy policy pursued by that directive and that the increased use of energy from renewable sources constitutes an important part of the package of measures needed, inter alia, to reduce greenhouse gas emissions, without however finding
any concrete expression in a specific provision of that directive.
54      In the third place, first, for the same reason as that set out in paragraph 38 of the present judgment, Article 6(1) and Article 8(2)(b) and (c) of Regulation 2022/1854 cannot preclude national legislation such as that described in paragraph 51 of the present judgment for a period during which they were not applicable, that is to say, in the present case, during the period from 1 February to 30 November 2022.
55      Second, as regards the period at issue in the main proceedings during which those provisions were applicable, it should be noted that it is apparent from Article 6(1) and Article 8 of Regulation 2022/1854, the wording of which is set out in paragraphs 39, 42 and 43 of the present judgment, that, as the Advocate General also observed in point 44 of his Opinion, the mere fact that the amount of the cap set by a Member State pursuant to Article 8(1) is lower than that provided for in Article 6(1) of Regulation 2022/1854 is not in itself such as to establish the incompatibility of that first cap with that regulation, those provisions leaving a certain margin of discretion to the Member States, which allows them to determine the cap that they set by taking into account characteristics specific to their national market. Regulation 2022/1854 does not contain any precise indication as to how the cap set by the Member States making use of the option offered to them in Article 8(1), in particular point (a) thereof, must be determined, apart from compliance with the conditions set out in paragraph 2 of that Article 8.
56      In that regard, recitals 27 to 29 and 39 of Regulation 2022/1854 cannot be read as requiring Member States to follow a specific methodology. As has already been recalled in paragraph 35 of the present judgment, the preamble to an EU act has no binding legal force. Those recitals cannot therefore, as such, impose obligations, in particular on Member States.
57      In addition, although that
recital 27 states that the level at which the cap on market revenues is set should not jeopardise the ability of the producers concerned to recover their investment and operating costs and, moreover, should preserve and incentivise future investments in the capacity needed for a decarbonised and reliable electricity system, those details are no different substantively from what Article 8(2)(b) of that regulation provides, namely that investment signals are not to be jeopardised.
58      As regards recitals 28 and 29 of that regulation, although they set out the reasons why the Council of the European Union adopted, in Article 6(1) of that regulation, a cap of
EUR 180 per MWh of electricity produced, they do not contain any obligation for Member States on the methodology to be followed in order to determine the cap that they would set pursuant to Article 8(1) of Regulation 2022/1854.
59      So far as concerns
recital 39 of that regulation, and as has already been stated in paragraph 46 of the present judgment, it merely states that, in order to take into account security of supply concerns, Member States should have the possibility to set the cap on market revenues in a way that allows electricity producers to retain 10% of surplus revenues above the cap on market revenues.
60      Therefore, in the absence of any binding indication contained in Regulation 2022/1854 on the methodology to be followed by the Member States when setting a cap under Article 8(1) of Regulation 2022/1854, it is the conditions set out in paragraph 2 of that Article 8 which must be complied with. In that regard, in view of the doubts expressed by the referring court, it must be recalled that, in accordance with the provisions of paragraph 2(b) and (c) of that Article 8, the cap set under paragraph 1
thereof must not jeopardise investment signals and must ensure that investment and operating costs are covered.
61      The assessment of the compatibility of the cap chosen by the national authorities in the light of the criteria set out in points (b) and (c) of that paragraph 2, however,
is factual in nature and depends on the specific characteristics of the national market and on all the legal and factual circumstances characterising, inter alia, the situation of the electricity producers concerned. That assessment therefore falls within the competence of the national authorities and, in the present case, that of the referring court. That said, in accordance with its settled case-law, the Court, ruling on a reference for a preliminary ruling, may nevertheless provide clarification in order to guide it in its examination (see, by analogy, judgments of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 77, and of 11 January 2024, Nárokuj, C‑755/22, EU:C:2024:10, paragraph 42).
62      Thus, it is particularly relevant for the purposes of that assessment, first, that, in order to determine the cap, reference was made to an objective criterion based on the average market conditions prevailing before the energy crisis over a relatively long period and that, in addition, inflation was taken into account. The use of such an objective criterion appears to be capable of satisfying the requirements of Article 8(2)(b) and (c) of Regulation 2022/1854, in so far as it enables it to be guaranteed that the cap is set at a price level that normally informed investors could reasonably have foreseen at the time when they made their investments.
63      In particular, since, in accordance with that Article 8(2)(c), the cap on market revenues must be set in such a way as to capture surplus revenues, while taking into account investment and operating costs, which must be covered, a cap set by means of such a criterion appears to be capable of catching only revenues exceeding such a price level, namely revenues that such investors could not reasonably have expected at the time that they took their investment decision.
64      The fact that, in the present case, the year 2020 was taken into account, but not the year 2021, cannot establish that such a method does not satisfy the conditions set out in those provisions. First, it is common ground that energy prices began to rise sharply in 2021, recital 1 of Regulation 2022/1854 stating, moreover, that already very high prices were observed on the electricity markets from September 2021. Therefore, to consider that 2021 should necessarily be taken into account for the purpose of determining the cap would be in conflict with the objective pursued by the cap that the Member States may establish in accordance with Article 8 of that regulation. Second, and subject to the verifications to be carried out by the referring court, in the present case, the selection of an average of the prices over the ten-year period immediately prior to the abnormal price increase that the cap is intended to offset in favour of consumers, which is moreover adjusted for inflation, appears to neutralise any anomalies which may have affected any of the 10 years used.
65      Second, in the context of the assessment that the referring court is called upon to carry out, the exceptional nature and limited temporal scope of the cap at issue are also relevant, in particular when they are
viewed against the average period of operation of plants producing electricity from renewable sources concerned by it and the fact that investments in the renewable energy sector are, by their very nature, long-term investments. In the present case, and subject to the verifications to be carried out by that court, it does not therefore appear, having regard to the exceptional nature of the cap at issue in the main proceedings and to its limited period of application compared to the duration of operation of a run-of-river hydroelectric plant, that the setting of a cap according to a methodology such as that at issue in the main proceedings is such as to jeopardise investments in that sector.
66      Third, the effects that a cap on revenues may have on investments, the cost structure of the plants concerned and the levelised cost of energy for the technology concerned are also relevant. It is apparent from the file before the Court that, subject to the verifications to be carried out by the referring court, the cost structure of renewable energy producers such as Secab remained largely unchanged despite the unforeseeable increase in fossil fuel prices, that increase not having had any impact on the costs of energy production for such operators.
67      Fourth, the fact that, as in the present case, the cap set is accompanied by a mechanism creating a legal obligation to compensate the producers concerned in the event of an excessive reduction in market prices, with the result that that cap also constitutes a guaranteed minimum price for those producers, suggests that that cap is set at a level sufficient to satisfy the conditions of Article 8(2)(b) and (c) of Regulation 2022/1854, unless it were to be considered that a mechanism devoid of economic logic had been put in place.
68      Fifth, the referring court will also have to take account of the fact that, as an emergency intervention in order to ensure the protection of the public interest, Regulation 2022/1854, including by the powers that it grants to Member States, such as those arising from Article 8(1) thereof, to set a lower cap than that provided for in Article 6(1) of that regulation in compliance with the conditions of paragraph 2 of that Article 8, balances the interests of renewable energy producers against those of consumers and seeks, by Article 10(1) thereof, to ensure that the surplus revenues resulting from the application of the cap on market revenues are used by Member States to finance support measures for final electricity customers that mitigate the impact of high electricity prices on those customers.
69      It follows from all the foregoing considerations that the answer to the second question is that Article 5(4) of Directive 2019/944, recitals 2, 3 and 12 of Directive 2018/2001 and Article 6(1) and Article 8(2)(b) and (c) of Regulation 2022/1854, read in the light of recitals 27 to 29 and 39 thereof, must be interpreted as not precluding national legislation adopted prior to Regulation 2022/1854 and which, for the period from 1 February 2022 to 30 June 2023, set a cap on the market revenues obtained by electricity producers from run-of-river hydroelectric power plants by determining that cap on the basis of an arithmetic average of the prices recorded in the corresponding market zone during the period from 1 January 2010 to 31 December 2020, adjusted for inflation, provided that such legislation does not adversely affect investments in the renewable energy sector, within the meaning of that Article 8(2)(b) and (c), which must be assessed in the light of all the relevant circumstances.
The third question
70      As a preliminary point, it should be noted that it is apparent from the request for a preliminary ruling that, by its third question, the referring court is uncertain as to the necessity, first, of imposing a cap on the revenues of producers of electricity from hard coal and, second, of providing for differentiated revenue caps for the various categories of electricity producers to which the cap provided for in Article 15-bis of Decree-Law No 4/2022 applies. However, the latter applies only to certain plants using ‘solar, hydroelectric, geothermal and wind power sources’.
71      Therefore, in view of what has already been noted in paragraphs 28 to 30 of the present judgment, it must be understood that, by its third question, the referring court asks, in essence, whether recital 3 of Directive 2018/2001 and Article 7(1)(h) to (j), Article 8(1)(a) and (d) and Article 8(2) of Regulation 2022/1854, read in the light of recitals 27 and 41 thereof, must be interpreted as precluding national legislation adopted prior to Regulation 2022/1854 and which, for the period from 1 February 2022 to 30 June 2023, set a cap on the market revenues obtained by electricity producers from run-of-river hydroelectric power plants, without imposing a cap on revenues from the sale of energy produced from hard coal or a differentiated cap for producers of electricity from solar, geothermal or wind sources.
72      In that regard, it should, in the first place, be recalled that, as has already been stated in paragraphs 35 and 36 of the present judgment, recital 3 of Directive 2018/2001 has no binding legal force and finds no concrete expression in a specific provision of that directive. That recital 3
is moreover unrelated to the setting of a cap on the revenues of certain electricity producers, such as that at issue in the main proceedings. Accordingly, the same recital 3 cannot preclude national legislation such as that described in the preceding paragraph of the present judgment.
73      In the second place, Article 7(1)(h) to (j), Article 8(1)(a) and (d) and Article 8(2) of Regulation 2022/1854 cannot, for the same reason as that already set out in paragraph 38 of the present judgment, be interpreted as precluding national legislation such as that described in paragraph 71 of the present judgment for the period from 1 February to 30 November 2022, those provisions not being applicable then ratione temporis.
74      As regards the period from 1 December 2022 to 30 June 2023, it follows from Article 7(1) of Regulation 2022/1854, read in combination with Article 6(1) thereof, that the cap on market revenues provided for in that Article 6 applies to market revenues from the sale of electricity produced from the sources listed in that Article 7(1). Those include, in particular, in
point (a), wind energy, in
point (b), solar thermal energy and photovoltaic energy, in point (c), geothermal energy, in point (d), hydropower without reservoir, in point (h), lignite, in point (i), crude petroleum products and, in point (j), peat. Hard coal is not among the energy sources listed in Article 7(1).
75      By contrast, Article 8(1) of that regulation states, in point (c), that Member States may maintain or introduce national measures to limit the market revenues of producers generating electricity from sources not referred to in Article 7(1) of that regulation, and, in point (d), that Member States may set a specific cap on the market revenues obtained from the sale of electricity produced from hard coal. As the unequivocal wording of those provisions indicates, they are mere powers granted to the Member States. The latter are therefore not obliged to provide for a cap on the market revenues obtained by producers of electricity from hard coal.
76      Moreover, in accordance with Article 8(1)(a) of Regulation 2022/1854, Member States have only the possibility of differentiating between technologies. Therefore, the mere fact that, by legislation such as that at issue in the main proceedings, the same revenue cap has been provided for producers of electricity from the sources listed in Article 7(1)(d) and (h) to (j), or that a different cap was set by Law No 197/22 for electricity producers from the other sources listed in that paragraph 1 cannot be regarded as infringing the provisions of that regulation.
77      Recitals 27 and 41 of that regulation, relied on by the referring court, cannot allow for an interpretation different from that set out in paragraphs 75 and 76 of the present judgment. As the preamble to an EU act has no binding legal value, the recitals of such an act cannot be relied upon to derogate from the provisions of the act itself or to interpret those provisions in a manner contrary to their wording (judgment of 21 March 2024, LEA, C‑10/22, EU:C:2024:254, paragraph 51 and the case-law cited). In the present case, the wording of Articles 6 to 8 of Regulation 2022/1854 is unequivocal as regards the absence of an obligation on the Member States to provide for a cap on the market revenues obtained by producers of electricity from hard coal or to provide for caps differentiated according to the technologies used.
78      Furthermore, as has already been stated in paragraph 57 of the present judgment, recital 27
of Regulation 2022/1854 cannot be distinguished, substantively, from what Article 8(2)(b) of that regulation provides and thus merely indicates that the cap on revenues must not jeopardise investments in renewable energy. As regards recital 41 of Regulation 2022/1854, it merely confirms that the Member States have only the option of setting a specific cap for market revenues from the sale of electricity produced from hard coal.
79      In the light of all the foregoing
considerations, the answer to the third question is that recital 3 of Directive 2018/2001 and Article 7(1)(h) to (j), Article 8(1)(a) and (d) and Article 8(2) of Regulation 2022/1854, read in the light of recitals 27 and 41 thereof, must be interpreted as not precluding national legislation adopted prior to Regulation 2022/1854 and which, for the period from 1 February 2022 to 30 June 2023, set a cap on the market revenues obtained by electricity producers from run-of-river hydroelectric power plants, without imposing a cap on revenues from the sale of energy produced from hard coal or a differentiated cap for producers of electricity from solar, geothermal or wind sources.
Costs
80      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) hereby rules:
1.      Article 5(4) 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, recitals 3 and 12 of Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources and Article 6(1) and Article 8 of Council Regulation (EU) 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices, read in the light of Article 7(5) and recitals 27 to 29 and 39 thereof,
must be interpreted as not precluding national legislation adopted prior to Regulation 2022/1854 and which, for the period from 1 February 2022 to 30 June 2023, set a cap on the market revenues obtained by electricity producers from run-of-river hydroelectric power plants without guaranteeing that those producers retain 10% of their revenues exceeding that cap.
2.      Article 5(4) of Directive 2019/944, recitals 2, 3 and 12 of Directive 2018/2001 and Article 6(1) and Article 8(2)(b) and (c) of Regulation 2022/1854, read in the light of recitals 27 to 29 and 39 thereof,
must be interpreted as not precluding national legislation adopted prior to Regulation 2022/1854 and which, for the period from 1 February 2022 to 30 June 2023, set a cap on the market revenues obtained by electricity producers from run-of-river hydroelectric power plants by determining that cap on the basis of an arithmetic average of the prices recorded in the corresponding market zone during the period from 1 January 2010 to 31 December 2020, adjusted for inflation, provided that such legislation does not adversely affect investments in the renewable energy sector, within the meaning of that Article 8(2)(b) and (c), which must be assessed in the light of all the relevant circumstances.
3.      Recital 3 of Directive 2018/2001 and Article 7(1)(h) to (j), Article 8(1)(a) and (d) and Article 8(2) of Regulation 2022/1854, read in the light of recitals 27 and 41 thereof,
must be interpreted as not precluding national legislation adopted prior to Regulation 2022/1854 and which, for the period from 1 February 2022 to 30 June 2023, set a cap on the market revenues obtained by electricity producers from run-of-river hydroelectric power plants, without imposing a cap on revenues from the sale of energy produced from hard coal or a differentiated cap for producers of electricity from solar, geothermal or wind sources.
[Signatures]
*      Language of the case: Italian.