Case C-467/24, 2Valorise Ham and Others: Request for a preliminary ruling from the Grondwettelijk Hof (Belgium) lodged on 2 July 2024 – 2Valorise Ham NV and Others v Ministerraad
Date: 2024-07-02
Institutions: Court of Justice
Subjects: electrical energy, energy crisis, equal treatment, maximum price, ownership, price of energy, principle of legal certainty, retroactivity of a law, revenue, right of establishment








C_202406073EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/6073


21.10.2024






Request for a preliminary ruling from the Grondwettelijk Hof (Belgium) lodged on 2 July 2024 – 2Valorise Ham NV and Others v Ministerraad


(Case C-467/24, 2Valorise Ham and Others)

(C/2024/6073)
Language of the case: Dutch

Referring court

Grondwettelijk Hof

Parties to the main proceedings


Applicants: 2Valorise Ham NV, 2Valorise Amel NV, 2Valorise NV, Luminus NV, EDF Belgium NV, ActiVent Wallonie CV, e-NosVents NV, Lumiwind CV, Luminus Wind Together CV, Rouge Lux BVBA, Biospace CV, Federatie van de Belgische Elektriciteits- en Gasbedrijven VZW, Organisatie voor Duurzame Energie Vlaanderen VZW, Wind4wallonia 2 NV, Electrabel NV, Eolo Energy NV

Defendant: Ministerraad

Questions referred







1.


Should Article 7(1)(e) of Council Regulation (EU) 2022/1854 (1) of 6 October 2022‘on an emergency intervention to address high energy prices’ be interpreted as meaning that only electricity produced from biomethane through purification and compression of biogas and through a biomethanisation process and not electricity produced from biogas through a biomethanisation process and using a cogeneration plant is excluded from the scope of the cap on market revenues from the sale of electricity laid down in Article 6 of that regulation?










2.


If the first question must be answered in the affirmative, does Article 7(1)(e) of the aforementioned Regulation (EU) 2022/1854, in the interpretation according to which only electricity produced from biomethane through purification and compression of biogas and through a biomethanisation process and not electricity produced from biogas through a biomethanisation process and using a cogeneration plant is excluded from the scope of the cap on market revenues from the sale of electricity laid down in Article 6 of that regulation, infringe Articles 20 and 21 of the Charter of Fundamental Rights of the European Union?










3.


Does Article 7(3), first sentence, of the aforementioned Regulation (EU) 2022/1854 infringe Articles 20 and 21 of the Charter of Fundamental Rights of the European Union in that it allows Member States, in particular in cases where the application of the cap on market revenues laid down in Article 6(1) of that regulation entails significant administrative burdens, to declare the cap inapplicable to producers generating electricity with production facilities with an installed capacity of up to 1 MW, without allowing Member States to provide for a progressive tariff or for a derogation or exception depending on the installed capacity of the facility concerned? If the first question must be answered in the affirmative, does Article 7(1)(e) of the aforementioned Regulation (EU) 2022/1854, in the interpretation according to which only electricity produced from biomethane through purification and compression of biogas and through a biomethanisation process and not electricity produced from biogas through a biomethanisation process and using a cogeneration plant is excluded from the scope of the cap on market revenues from the sale of electricity laid down in Article 6 of that regulation, infringe Articles 20 and 21 of the Charter of Fundamental Rights of the European Union?










4.


Does Article 6(1) of the aforementioned Regulation (EU) 2022/1854, whether or not taking into account the answers to be given to the fifth and sixth questions, infringe Article 17 of the Charter of Fundamental Rights of the European Union, in that, by providing that the market revenues of the electricity producers listed in Article 7(1) of that regulation are ‘capped’ at a maximum of EUR 180/MWh, it implies that the surplus of such revenues is subject to a levy rate of 100 per cent?










5.


Should Article 6(1) and Article 8 of the aforementioned Regulation (EU) 2022/1854, read in the light of recital 40 thereof, be interpreted as allowing Member States to introduce a national measure whereby, like Article 5 of the Law of 16 December 2022‘amending the Law of 29 April 1999 on the organisation of the electricity market and introducing a cap on market revenues of electricity producers’, the cap on market revenues is set at EUR 130/MWh, with reference by way of justification to the increase in prices on the Belgian electricity market?










6.


If the fifth question must be answered in the affirmative, do Articles 6(1) and 8 of the aforementioned Regulation (EU) 2022/1854 infringe Articles 16 and 17 of the Charter of Fundamental Rights of the European Union and the principle of energy solidarity under EU law?










7.


Do Article 6(1) and Article 7(1)(e) of the aforementioned Regulation (EU) 2022/1854 infringe Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, the principles of legal certainty and the protection of legitimate expectations, as well as the duty to state reasons as provided for in Article 296 of the Treaty on the Functioning of the European Union, in that they also apply the compulsory cap on market revenues of a maximum of EUR 180/MWh to the sale of electricity produced from biomass fuels (solid or gaseous biomass fuels)?










8.


Should Article 8(1)(b) and (2) of the aforementioned Regulation (EU) 2022/1854 be interpreted as requiring Member States to introduce a higher price cap for facilities producing electricity from solid or gaseous biomass fuels than the EUR 180/MWh price cap provided for in Article 6(1) of that regulation?










9.


Should Article 2(5) and Article 6(1) of the aforementioned Regulation (EU) 2022/1854, read in the light of recital 30 thereof, be interpreted as permitting a Member State to introduce a national measure whereby, like Article 5 of the aforementioned Law of 16 December 2022, the market revenues to which the price cap is applied are determined solely on the basis of presumptions, without making it possible for electricity producers to prove the amount of revenue they have actually realised from the sale and supply of electricity?










10.


Should Article 2(5) and Article 6(1) of the aforementioned Regulation (EU) 2022/1854, read in the light of recital 30 thereof, be interpreted as permitting a Member State to differentiate, with regard to the use of presumptions for determining the market revenues to which the price cap is applied, between producers of electricity from nuclear energy and producers of electricity from other sources?










11.


If the ninth question must be answered in the affirmative, do Article 2(5) and Article 6(1) of the aforementioned Regulation (EU) 2022/1854, read in the light of recital 30 thereof, infringe Article 17 of the Charter of Fundamental Rights of the European Union?










12.


If the tenth question must be answered in the affirmative, do Article 2(5) and Article 6(1) of the aforementioned Regulation (EU) 2022/1854, read in the light of recital 30 thereof, infringe Articles 20 and 21 of the Charter of Fundamental Rights of the European Union?










13.


Should Articles 6(1), 7, 8 and 22(2)(c) of the aforementioned Regulation (EU) 2022/1854 be interpreted as permitting Member States to introduce a national measure whereby, like Article 5 of the aforementioned law of 16 December 2022, the cap on market revenues is applied before 1 December 2022, namely on 1 August 2022?










14.


If the thirteenth question must be answered in the affirmative, do Articles 6(1), 7, 8 and 22(2)(c) of the aforementioned Regulation (EU) 2022/1854 infringe the principles of legal certainty and the protection of legitimate expectations and the principle of non-retroactivity of legal rules, the principle of energy solidarity and Article 17 of the Charter of Fundamental Rights of the European Union?










15.


Should EU law be interpreted as meaning that, if the Constitutional Court were to conclude, on the basis of the answers to the aforementioned questions, that the aforementioned Law of 16 December 2022, which implements the aforementioned Regulation (EU) 2022/1854, infringes one or more of the obligations arising from the provisions referred to in those questions, EU law would prevent the Constitutional Court from upholding the effects of the aforementioned Law of 16 December 2022?






(1)  
            OJ 2022 L 261I, p. 1.


ELI: http://data.europa.eu/eli/C/2024/6073/oj
ISSN 1977-091X (electronic edition)