2025-12-202512C118202306330-00-TRA-DOC-EN-RES-C-0633-23-202513567-07,00
Case C‑633/23
Electrabel SA and Others
v
Commission de Régulation de l’Electricité et du Gaz (CREG)
(Request for a preliminary ruling from the Cour d’appel de Bruxelles)
Judgment of the Court (Fourth Chamber) of 18 December 2025
(Reference for a preliminary ruling – Internal market for electricity – Regulation (EU) 2022/1854 – Emergency intervention to address high energy prices – Article 2(5) and (9) – Articles 6 to 8 – Cap on market revenues obtained by electricity producers using certain energy sources – Determination of ‘market revenues’ – National legislation providing for the use of presumptions that are either irrebuttable or rebuttable by means of other presumptions – Principle of proportionality – Article 22(2)(c) – Period of application of Articles 6 to 8 of that regulation – Application of a measure capping revenue for a period prior to that provided for in that regulation, pursuant to national legislation adopted after the entry into force of that regulation – Principles of the primacy and effectiveness of EU law – Principle of sincere cooperation)
1.
Energy – Internal market for electricity – Regulation 2022/1854 – Emergency intervention to address high energy prices – Cap on market revenues obtained from the generation of electricity using certain energy sources – National regulations providing for the use of irrebuttable or rebuttable presumptions by means of other presumptions – Principle of proportionality – Whether permissible – Condition
(Council Regulation 2022/1854, recital 37 and Arts 1, 2(5) and (9), and 6 to 8)
(see paragraphs 38-53, 55, operative part 1)
2.
Energy – Internal market for electricity – Regulation 2022/1854 – Emergency intervention to address high energy prices – Cap on market revenues obtained from the generation of electricity using certain energy sources – National regulations adopted after the entry into force of Regulation 2022/1854 – Regulations governing the application of a measure capping market revenues for a period prior to that provided for in that regulation – Principles of the primacy and effectiveness of EU law and sincere cooperation – Whether permissible
(Art. 4(3) TEU; Art. 288 TFEU; Council Regulation 2022/1854, Arts 6 to 8 and 22(2)(c))
(see paragraphs 57-65, operative part 2)
Résumé
Hearing a request for a preliminary ruling from the cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium), the Court of Justice rules on the interpretation of Regulation 2022/1854, which introduced emergency measures to mitigate the effects of high energy prices, in particular by means of a mandatory cap on revenues obtained by electricity producers from certain sources.  (
1
) In that context, it examined the methods for determining the revenues from the electricity market subject to that cap and clarified the temporal scope of that regulation in relation to national legislation adopted while the regulation was in force and which also provided for the application of a measure capping revenues from that market.
Pursuant to Regulation 2022/1854, the Belgian Electricity Law has introduced a cap on the market revenues of certain electricity producers, through a levy payable to the State on surplus revenues generated during a specified period.  (
2
)
On 28 February 2023, the Commission de régulation de l’électricité et du gaz (Electricity and Gas Regulatory Commission (CREG)) adopted, in accordance with a provision of the Electricity Law,  (
3
) a decision on the declaration model and format of documents to be submitted by debtors subject to the levy introduced by that law.
On 29 and 30 March 2023, the applicants, which are either private legal entities subject to this levy, in particular electricity producers and/or suppliers, or federations of companies in the energy sector acting on behalf of their members, brought three actions before the referring court seeking the annulment of that decision. In support of their claims, the applicants allege that the CREG’s decision of 28 February 2023 was adopted in breach of Regulation 2022/1854, Article 288 TFEU and the principles of primacy and effectiveness of EU law.
The referring court notes that the revenue declaration model provided for in the CREG decision of 28 February 2023 is based on a set or series of presumptions from which the debtor can never completely escape, with the result that the debtor is unable to declare the actual revenue it has actually obtained. In that regard, it doubts that the possibility of allowing Member States to use estimates to calculate the cap on market revenue  (
4
) authorises them to provide for a system based solely on irrebuttable presumptions, or on presumptions that are partly rebuttable but in a way that leaves elements theoretically predetermined by the Member State, without taking into account the revenue actually obtained. Furthermore, with regard to the period covered by the CREG decision of 28 February 2023, the referring court questions whether the option for Member States to maintain or introduce measures that further limit market revenues  (
5
) includes the option of introducing a cap system before the date of entry into force of that regulation.
Findings of the Court
In the first place, with regard to determining the amount of revenue from the market to which the revenue cap measure imposed by Regulation 2022/1854 must apply, the Court finds that it follows from the wording of its provisions that this cap measure cannot be applied to theoretical revenues that do not correspond to the reality of the market, but must be applied to amounts reflecting the reality of the revenues received by the operators concerned. However, none of the relevant provisions of the regulation specifies the method by which those revenues are to be determined.
The Court therefore emphasises that it is for the Member States to determine the methods by which the market revenue to which the revenue cap measure is to be applied is determined. However, in so far as, in the context of that exercise, the Member States are implementing Regulation 2022/1854, they must exercise their powers in a manner that preserves the effectiveness of the provisions of that regulation.
As regards the question whether, in the context of that exercise, Member States are permitted to use presumptions, the Court points out, first, that, given the large number of transactions for which the competent authorities of the Member States must ensure that the cap on market revenue is applied, those authorities should be able to use reasonable estimates to calculate that cap. An estimate is by its nature an approximation of a given value and does not always correspond to an exact value. Therefore, a possible difference between actual revenue and presumed revenue may be accepted without the use of presumptions necessarily being incompatible with Regulation 2022/1854, provided that that difference, whether positive or negative, remains reasonable, namely, moderate, and that the estimates used in applying those presumptions are representative of the reality of the market during the period in question.
Secondly, Regulation 2022/1854  (
6
) aims, in particular, to introduce emergency measures to mitigate the effects of high energy prices by means of exceptional, targeted and temporary measures. These measures are aimed, in particular, at capping the market revenues that certain producers derive from electricity generation and redistributing them in a targeted manner to end customers of electricity. Therefore, the use of reasonable estimates, including in the form of presumptions, in order to implement short-term measures quickly, may be an appropriate, or even necessary, means of ensuring the effectiveness of the revenue cap measure imposed by Regulation 2022/1854 and thus of achieving that objective.
Thirdly, the Court notes that, under Regulation 2022/1854,  (
7
) Member States are required to put in place effective measures to ensure that the cap is effectively applied and to prevent it from being circumvented, and it may be necessary to collect and monitor a very large amount of data. Thus, depending on the specific characteristics of the national market in question or the technical difficulties that may exist in isolating the revenues that are actually subject to the cap imposed by that regulation, it may be necessary to resort to presumptions.
The Court concludes that Regulation 2022/1854 does not preclude a Member State from using presumptions to determine the amount of revenue from the market that must be subject to the capping measure imposed by that regulation, provided that those presumptions make it possible to obtain reasonable estimates of that revenue which are representative of the reality of the market during the period in question.
Given the urgency of implementing the revenue cap measure imposed by Regulation 2022/1854 and the exceptional and time limited nature of that measure, the use of presumptions, including, where applicable, irrebuttable presumptions, in order to determine precisely the amount of revenue to which that measure should be applied appears proportionate, provided that those presumptions make it possible to obtain reasonable estimates of those revenues, which are representative of the reality of the market during the period in question. The assessment of whether a given presumption meets this condition falls within the competence of the national authorities, acting under the supervision of the national courts. For the purposes of that assessment, account must be taken of all the factual and technical elements characterising not only the situation of the operators and installations concerned, but also the national electricity market.
Consequently, the Court considers that Regulation 2022/1854  (
8
) and the principle of proportionality do not preclude national legislation under which the amount of revenue to which a cap on market revenue provided for under that regulation applies is determined, on the basis of the electricity generation facilities concerned, either on the basis of irrebuttable presumptions or on the basis of rebuttable presumptions, but which can only be rebutted under certain conditions, provided that those presumptions make it possible to obtain reasonable estimates of those revenues, which are representative of the reality of the market during the period in question.
In the second place, with regard to the temporal scope of Regulation 2022/1854, the Court finds that nothing in that regulation indicates that it applies to a measure capping revenue introduced by national legislation for a period prior to its entry into force, nor, a fortiori, that such legislation must comply with the conditions laid down in that regulation. Thus, in the absence of EU legislation on the matter that is applicable ratione temporis, it cannot be considered that Member States are deprived of the power to exercise their competences by adopting a measure capping market revenues that is similar to that required by Regulation 2022/1854, but with a temporal scope different from that provided for by that regulation.
The fact that such national legislation was adopted even though Regulation 2022/1854 was already in force is irrelevant in this regard, since none of the provisions of that regulation indicates that the EU legislature intended to deprive Member States of that option or to make its exercise subject to EU authorisation. On the contrary, the EU legislature expressly envisaged the possibility that Member States might introduce or maintain measures capping market revenues that are stricter  (
9
) than the cap provided for in that regulation.  (
10
) Very high prices had been observed on the electricity markets since September 2021, and Russia’s war of aggression against Ukraine had led to significant further increases and increased volatility in electricity prices.  (
11
) Furthermore, the EU legislature noted  (
12
) that all Member States had been affected by this energy crisis, albeit to varying degrees, and that an extreme and sustained increase in prices had been observed since February 2022.
Furthermore, the referring court has not indicated that it has any doubts as to the compatibility of the national legislation at issue with other provisions of EU law that may apply ratione temporis. In addition, the Court emphasises, first, that neither Article 288 TFEU nor the principles of primacy and effectiveness of EU law can alter the scope of a regulation as determined by the EU legislature. Secondly, under the principle of sincere cooperation,  (
13
) Member States must refrain, in particular, from any measure that could jeopardise the achievement of the Union’s objectives. However, in view of the fact that the introduction of a measure to cap revenue similar to that provided for in Regulation 2022/1854 pursues objectives compatible with those of that regulation, it cannot be considered that, by applying such a measure at national level before it is imposed at EU level, a Member State would be in breach of that principle.
Consequently, the Court rules that Regulation 2022/1854,  (
14
) read in conjunction with Article 288 TFEU and the principles of primacy and effectiveness of EU law and of sincere cooperation, does not preclude national legislation adopted after the entry into force of that regulation which provides for the application of a measure capping market revenues similar to that imposed by that regulation, but for a period prior to that laid down by that regulation.
(
1
) 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), Articles 6 and 7.
(
2
) Article 22ter of the loi relative à l’organisation du marché de l’électricité (Law on the organisation of the electricity market) of 29 April 1999 (Moniteur belge of 11 May 1999, p. 16264), as amended by the Law amending the loi modifiant la loi relative à l’organisation du marché de l’électricité et introduisant un plafond sur les recettes issues du marché des producteurs d’électricité (Law on the organisation of the electricity market and introducing a cap on the revenues of electricity producers) of 16 December 2022 (Moniteur belge of 22 December 2022, p. 98819) (‘the Electricity Law’).
(
3
) The fourth subparagraph of Article 22ter(6) of the Electricity Law stipulates that debtors subject to the levy introduced by Article 22ter are required to submit a declaration to the CREG by a certain date, and specifies the content of that declaration.
(
4
) According to recital 37 of Regulation 2022/1854, Member States should be able to use reasonable estimates to calculate the cap on market revenues.
(
5
) Provided for in Article 8(1)(a) of Regulation 2022/1854.
(
6
) As stated in Article 1.
(
7
) Article 6(3), Article 6(2) and Article 7(6).
(
8
) In particular, Articles 6 to 8, read in conjunction with Article 2(5) and (9).
(
9
) Article 8(1)(a) of Regulation 2022/1854.
(
10
) Article 6(1).
(
11
) Recital 1 of Regulation 2022/1854.
(
12
) Recital 5 of Regulation 2022/1854.
(
13
) Article 4(3) TEU.
(
14
) Specifically, Articles 6 to 8 and Article 22(2)(c).