1 This request for a preliminary ruling concerns the interpretation of Articles 6 to 8 and 22 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), read in conjunction with Article 2(5) and (9) of that regulation, Article 6 TEU, Article 288 TFEU and the principles of proportionality, primacy, effectiveness and sincere cooperation.
2 The request has been made in three disputes between, first, Electrabel SA, secondly, Fédération Belge des Entreprises Électriques et Gazières ASBL, Organisatie voor Duurzame Energie Vlaanderen ASBL and Wind4Wallonia 2 SA (together, ‘FEBEG and Others’), and, thirdly, Luminus SA, EDF Belgium SA, ActiVent Wallonie SCRL, Eol’Wapi SA, Lumiwind SC and Luminus Wind Together SC (together, ‘Luminus and Others’) (together, ‘the applicants in the main proceedings’) against the Commission de Régulation de l’Électricité et du Gaz (CREG) (Belgium), concerning the legality of the latter’s decision of 28 February 2023 on the model declaration to be submitted by debtors of the levy introduced in the context of the cap on revenues from the electricity producers’ market (‘the decision of 28 February 2023’).
3 According to Article 4(3) TEU: ‘Pursuant to the principle of sincere cooperation, the [European] Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.’
4 Article 6 TEU provides: ‘1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union [(“the Charter”)], which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties. 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.’
5 Paragraph 2 of Article 288 TFEU is worded as follows: ‘A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.’
6 Recitals 1, 5, 28, 30 and 37 of Regulation 2022/1854 stated: ‘(1) Very high prices in electricity markets have been observed since September 2021. … The escalation of [the Russian Federation]’s war of aggression against Ukraine … since February 2022 has led to gas supplies declining markedly. [The Russian Federation]’s war of aggression against Ukraine has also caused uncertainty regarding the supply of other commodities … used by power-generating installations. This has resulted in substantial additional increases in, and volatility of, the price of electricity. … (5) All Member States have been negatively affected by the current energy crisis, albeit to a different extent. … … (28) … the extreme and lasting price increase observed since February 2022 is markedly different from a normal market situation of occasional peak prices. … … (30) The cap on market revenues should be set on market revenues rather than on total generation revenues …, to avoid significantly impacting the initial expected profitability of a project. Regardless of the contractual form in which the trade of electricity may take place, the cap on market revenues should apply to realised market revenues only. This is necessary to avoid harming producers who do not actually benefit from the current high electricity prices due to having hedged their revenues against fluctuations in the wholesale electricity market. Hence, to the extent that existing or future contractual obligations … lead to market revenues from the production of electricity up to the level of the cap on market revenues, such revenues should remain unaffected by this Regulation. … … (37) In order to ensure an effective enforcement of the cap on market revenues, the producers, intermediaries and relevant market participants should provide the necessary data to the competent authorities of Member States and, where appropriate, to the system operators and nominated electricity market operators. In view of the large number of individual transactions for which competent authorities of Member States have to ensure the enforcement of the cap on market revenues, those authorities should have the possibility to use reasonable estimates for the calculation of the cap on market revenues.’
7 Under the terms of Article 1 of that regulation, entitled ‘Subject matter and scope’: ‘This Regulation establishes an emergency intervention to mitigate the effects of high energy prices through exceptional, targeted and time limited measures. Those measures aim to reduce electricity consumption, to introduce a cap on market revenues that certain producers receive from the generation of electricity and redistribute to final electricity customers in a targeted manner, …’
8 Article 2 of that regulation, entitled ‘Definitions’, was worded as follows: ‘For the purposes of this Regulation, … the following definitions also apply: … (5) “market revenue” means realised income a producer receives in exchange for the sale and delivery of electricity in the Union, regardless of the contractual form in which such exchange takes place, including power purchase agreements and other hedging operations against fluctuations in the wholesale electricity market and excluding any support granted by Member States; … (9) “surplus revenues” means a positive difference between the market revenues of producers per [megawatt hour (MWh)] of electricity and the cap on market revenues of [EUR 180] per MWh of electricity provided for in Article 6(1); …’
9 Article 6 of that regulation, entitled ‘Mandatory cap on market revenues’, provided: ‘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 [EUR 180] 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. 3. Member States shall put effective measures in place to prevent a circumvention of the obligations on producers pursuant to paragraph 2. They shall in particular make sure that the cap on market revenues is effectively applied in cases where producers are controlled, or partially owned, by other undertakings, in particular where they are part of a vertically integrated undertaking. 4. Member States shall decide whether to apply the cap on market revenues at the settlement of the exchange of energy or thereafter. 5. The [European] Commission shall provide guidance to Member States in the implementation of this Article.’
10 Article 7 of Regulation 2022/1854, entitled ‘Application of the cap on market revenues to electricity producers’, provided: ‘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. 2. The cap on market revenues provided for in Article 6(1) shall not apply to demonstration projects or to producers whose revenues per MWh of electricity produced are already capped as a result of State or public measures not adopted under Article 8. 3. Member States may, in particular in cases where the application of the cap on market revenues provided for in Article 6(1) leads to a significant administrative burden, decide that the cap on market revenues does not apply to producers generating electricity with power-generating facilities with an installed capacity of up to 1 MW. … … 6. Producers, intermediaries and relevant market participants, as well as system operators where relevant, shall provide to competent authorities of Member States and, where relevant, to the system operators and nominated electricity market operators, all necessary data for the application of Article 6, including on the electricity produced and the related market revenues, regardless of the market timeframe in which the transaction takes place and of whether the electricity is traded bilaterally, within the same undertaking or in a centralised marketplace.’
11 Under Article 8 of that 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); … 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.’
12 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; …’
13 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 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 amending the 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), applicable to the main proceedings (‘the Electricity Law’), provides: ‘§1. This Article establishes a cap on revenues from the electricity producers’ market, through a levy payable to the State on surplus revenues generated between 1 August 2022 and 30 June 2023 by the debtors referred to in paragraph 2. §2. The levy is payable by: 1° any natural or legal person who, during the period referred to in paragraph 1, has fed electricity into the transmission network, a network with a transmission function, a (closed) distribution network, a closed industrial network, a railway traction network or a direct line, by means of an electricity generation facility located in Belgium using one of the technologies listed in Article 7[(1)] of Regulation [2022/1854], with a minimum installed capacity of 1 MW; 2° any nuclear operator …; 3° any contributory company …; 4° any owner of a nuclear power plant referred to in Article 4/1 of the loi du 31 janvier 2003 sur la sortie progressive de l’énergie nucléaire à des fins de production industrielle d’électricité [(Law of 31 January 2003 on the phasing out of nuclear energy for industrial electricity production) (Moniteur belge of 28 February 2003, p. 9879)]. Notwithstanding paragraph 1, the levy shall not be payable by citizen energy communities and renewable energy communities, or equivalent communities covered by regional legislation, provided that the surplus revenue is transferred directly to consumers who are members of those communities. §3. The levy payable by the debtor referred to in paragraph 2 shall be equal to 100% of the surplus revenue. Surplus revenues represent the positive difference between market revenue and the cap on market revenue as set in accordance with paragraph 4, calculated for each electricity sales transaction in MWh delivered during the period referred to in paragraph 1, and per electricity generation facility located in Belgium using one of the technologies listed in Article 7[(1)] of Regulation [2022/1854], with a minimum installed capacity of 1 MW. Surplus revenues are deemed to be nil where the electricity sold on the market has been generated by an electricity generation facility that is subject to a production support mechanism under which market revenues are capped by a competent authority. §4. The cap on revenue from the market is EUR 130 per MWh of electricity. … §5. Market revenues are the revenues earned, for each transaction, by the debtor referred to in paragraph 2 in exchange for the sale and delivery of electricity during the period referred to in paragraph 1, regardless of the contractual form under which this exchange takes place, including electricity purchase contracts and other hedging transactions against fluctuations in the wholesale electricity market, excluding any aid or subsidy granted by a public authority. For the determination of the market revenue referred to in paragraph 1, the following presumptions shall apply: 1° for nuclear power plants covered by the loi du 11 avril 2003 sur la contribution de répartition [(Law of 11 April 2003 on the distribution contribution) (Moniteur belge of 15 July 2003, p. 37954)], the revenue from the market is calculated per installation in accordance with Section 3 of the annex to the Law of 11 April 2003 on the distribution contribution, as amended by the loi du 25 décembre 2016 portant modifications de la loi du 11 avril 2003 sur les provisions constituées pour le démantèlement des centrales nucléaires et pour la gestion des matières fissiles irradiées dans ces centrales et de la loi du 29 avril 1999 relative à l’organisation du marché de l’électricité [(Law of 25 December 2016 amending the Law of 11 April 2003 on provisions for the decommissioning of nuclear power plants and the management of irradiated fissile materials in those plants and the Law of 29 April 1999 on the organisation of the electricity market) (Moniteur belge of 29 December 2016, p. 90988)], it being understood that: (a) the volume of electricity sold forward is considered to have been traded on each day on which a daily quotation for a calendar baseload product was published by the energy block exchange platform referred to in Section 3 above; (b) the volume of electricity sold on the day-ahead market shall be considered to have been traded for each one-hour delivery period for the relevant hourly volume; 2° for the nuclear power plant referred to in Article 4/1 of the Law of 31 January 2003 on the phasing out of nuclear energy for industrial electricity production, the revenue from the market shall be calculated in accordance with point 3 of Article 4/1(§2) of the Law of 31 January 2003 on the phasing out of nuclear energy for industrial electricity production, it being understood that: (a) the volume of electricity sold forward is considered to have been traded on the first working day of each month on which a daily quotation for a baseload product was published by the energy block exchange platform concerned in accordance with Article 4/1 above; (b) the volume of electricity sold on the day-ahead market shall be considered to have been traded for each one-hour delivery period for the relevant hourly volume; 3° for production facilities not covered by points 1° and 2° and whose production is covered by an electricity purchase agreement, market revenues shall be calculated in accordance with the terms of that agreement, provided that the commercial terms of the agreement correspond to reasonable market conditions, it being understood that: (a) the volume of electricity sold forward is considered to have been traded per day taken into account by the aforementioned contract to determine the price; (b) the volume of electricity sold on the day-ahead market shall be considered to have been traded for each one-hour delivery period for the relevant hourly volume; 4° for production facilities not covered by points 1°, 2° and 3° which do not benefit from a production support mechanism, or which benefit from a production support mechanism whose amount does not depend on changes in the price of electricity, or which benefit from a production support mechanism whose amount depends on changes in the price of electricity over a three-year period, the revenue from the market is calculated on the basis that: (a) the average annual production expected to be sold in year-1 is considered to be sold forward on the basis of an annual baseload product in accordance with a third party’s sales strategy in year-3 (CAL+3), one third in year-2 (CAL+2) and one third in year-1 (CAL+1) at prices published by an energy block exchange platform operating in Belgium. This expected average annual production for sale in year-1 is considered to correspond to the annual production in 2019 for electricity generation facilities using the technologies listed in Article 7(1)(a), (b), (d), (e) and (f) of Regulation [2022/1854]. If the electricity generation facility was not operational in 2019, this expected production in year-1 shall be reported by the debtor. For other electricity generation facilities, this expected average annual production for sale in year-1 shall be considered to correspond to 85% of the maximum capacity of the electricity generation facility; (b) the positive difference between the volume of electricity produced and sold per quarter hour and the volume of electricity referred to in (a) shall be considered to have been sold at the reference market price on an hourly basis; (c) the volume of electricity sold forward is considered to have been traded on each day on which a daily quotation for a calendar baseload product was published by an energy block exchange platform operating in Belgium; (d) the volume of electricity sold on the day-ahead market is considered to have been traded for each one-hour delivery period; 5° for production facilities not covered by points 1°, 2°, 3° and 4°, market revenue shall be calculated on the basis that: (a) the average annual production expected to be sold in year-1 is considered to be sold forward on the basis of an annual baseload product in year-1 (CAL+1) at prices published by an energy block exchange platform operating in Belgium. This expected average annual production for sale in year-1 is considered to correspond to the annual production in 2019 for electricity generation facilities using the technologies listed in Article 7(1)(a), (b), (d), (e) and (f) of Regulation [2022/1854]. If the electricity generation facility was not operational in 2019, this expected production in year-1 shall be reported by the debtor. For other electricity generation facilities, this expected average annual production for sale in year-1 shall be considered to correspond to 85% of the maximum capacity of the electricity generation facility; (b) the positive difference between the volume of electricity produced and sold per quarter hour and the volume of electricity referred to in (a) shall be considered to have been sold at the reference market price on an hourly basis; (c) the volume of electricity sold forward is considered to have been traded on each day on which a daily quotation for a calendar baseload product was published by an energy block exchange platform operating in Belgium, over a period of one year or, where a support mechanism for the production facility is based on the evolution of the electricity price over a period of six months, over a period of six months; (d) the volume of electricity sold on the day-ahead market is considered to have been traded for each one-hour delivery period; 6° for the electricity generation facilities referred to in points 3°, 4° and 5°, the debtor referred to in paragraph 2 may provide evidence that the revenues from the market differ from those referred to in points 3°, 4° and 5°, provided that the debtor provides such evidence for its entire generation fleet, and it being understood that: (a) sales and purchases of electricity within a vertically integrated undertaking or between undertakings, one of which is controlled or partially owned, directly or indirectly, by the other, shall be deemed to have been concluded for the purposes of this article on the basis of a price consistent with the market price on the day of the transaction for the delivery period covered by the transaction, as published by an energy block exchange platform operating in Belgium; (b) any volume of electricity produced and sold, but not sold forward, is deemed to have been sold at the market reference price; (c) each forward electricity sale constitutes a transaction defined by its transaction date, price and volume; (d) the volume of electricity sold on the day-ahead market is considered to have been traded for each one-hour delivery period. Except for the presumption referred to in point 3°, surplus revenues shall be reduced by the costs associated with purchasing electricity volumes in order to deliver electricity volumes sold but not produced during the period referred to in paragraph 1, where actual production is lower than forward sales, up to the positive difference between the market reference price and the surplus revenue cap referred to in paragraph 4. This reduction may not result in negative surplus revenues, and the costs in question may not be carried forward from a previous period or carried over to a subsequent period, nor may they be transferred between production facilities. §6. For the levy due for the period from 1 August 2022 to 31 December 2022 inclusive, the debtors referred to in paragraph 2 shall submit a declaration to the [CREG] by 30 April 2023 at the latest. For the levy due … for the period from 1 January 2023 to 30 June 2023 inclusive, the debtors referred to in paragraph 2 shall file a declaration with the [CREG] by 7 September 2023 at the latest. The declaration shall contain at least the following information: 1° full identification of the debtor; 2° full identification of each of its production facilities … and the total volume of electricity fed into the grid during the period in question by each electricity production facility, as well as the maximum installed capacity of each electricity production facility, as validated by the relevant network operator(s); 3° where the total volume of electricity per electricity generation facility referred to in point 2° is shared between different debtors, the distribution of the volume of electricity concerned between the debtors concerned and any document attesting to the agreement of the debtors concerned on that distribution; 4° the profile of electricity produced and sold per quarter hour by each production facility, validated by the relevant network operator(s); 5° where applicable, details of the energy block exchange platform operating in Belgium used; 6° where applicable, the evidence referred to in point 6° of subparagraph 2 of paragraph 5, accompanied by all supporting documents and a justification of the sales strategy adopted; 7° by way of derogation from points 3° to 6°, for the legal persons referred to in subparagraph 2 of paragraph 2, proof that the surplus revenue is transferred directly to consumers. Failing this, these legal persons shall transmit the data referred to in points 3° to 6°. The [CREG] determines the model for the declaration and the format of the documents to be submitted: …’
14 The decision of 28 February 2023 was adopted by the CREG pursuant to the fourth subparagraph of Article 22ter(6) of the Electricity Law. That decision determines the declaration model and the format of the documents to be submitted by the debtors of the levy introduced by Article 22ter(1) of that law.
15 The applicants in the main proceedings are either legal persons governed by private law which are producers and/or suppliers of electricity generated from energy sources listed in Article 7(1) of Regulation 2022/1854 and which fall within the scope of the decision of 28 February 2023 given that they are subject to the levy introduced by Article 22ter(2) of the Electricity Law, or legal persons governed by private law other than producers or suppliers of electricity, but which also fall within that scope because they are subject to that levy, namely federations of undertakings in the energy sector acting for the benefit of their members.
16 On 29 March 2023, Electrabel, on the one hand, and FEBEG and Others, on the other hand, as well as, on 30 March 2023, Luminus and Others, brought three appeals before the cour d’appel de Bruxelles (section cour des marchés) (Court of Appeal (Market Court), Brussels, Belgium), which is the referring court, seeking the annulment of the decision of 28 February 2023. That court joined the three appeals in view of their similarities.
17 In support of their claims, the applicants in the main proceedings, in the first place, put forward grounds for annulment relating to the exclusive nature of the presumptions established by the decision of 28 February 2023. Electrabel argues, in essence, that that decision infringes Article 2(5) and Articles 6 to 8 of Regulation 2022/1854 in that it requires it to declare revenues that has not actually been received, whereas that regulation requires the declaration of receipts that have actually been collected. FEBEG and Others, as well as Luminus and Others, allege a violation of that regulation, in particular Articles 6 and 7 thereof, Article 288 TFEU and the principles of primacy and effectiveness of EU law, in that the decision applies legal presumptions in order to establish the revenues to which the cap introduced by Article 22ter of the Electricity Law applies. In that regard, they point out that those presumptions are, depending on the energy source concerned, either irrebuttable or rebuttable, but that, in the latter case, they can be rebutted only under certain conditions and by resorting to other presumptions. According to them, that regulation only provides for a cap on realised market revenues, so that it should at least be possible to declare actual revenues.
18 Thus, the applicants in the main proceedings criticise the CREG for having included, in its decision of 28 February 2023, the system of six presumptions provided for in points 1° to 6° of the second subparagraph of Article 22ter(5) of the Electricity Law. Such a system, based exclusively on presumptions, results in 100% taxation of fictitious revenues, whereas, according to Regulation 2022/1854, the cap applies to ‘market revenues’, namely, revenues actually obtained by electricity producers. Furthermore, that regulation provides that the cap applies ‘per transaction’, whereas, according to all the presumptions in question, electricity is supposed to have been sold on a daily basis at the price of electricity on each of those days on an electricity exchange if it is sold on a forward basis, and on an hourly basis if it is sold on the spot market. That would result in a levy being imposed if the cap is exceeded on a single day or hour of the period, even if the price actually received is an average price below the cap or a fixed price below the cap. The use of a system based exclusively on presumptions would be completely unjustified and would, in reality, serve the purpose of increasing the amounts levied.
19 The CREG and the Belgian State contest that argument, citing in particular recital 37 of Regulation 2022/1854, according to which Member States may use reasonable estimates to calculate the cap on market revenues. That regulation did not lay down any specific rules for calculating the amount of surplus revenue, and the Commission did not provide any guidance on that matter, contrary to what was provided for in Article 6(5) of that regulation. The use of the presumptions provided for in the Electricity Law would not result in the taxation of fictitious revenues and would, moreover, make it possible to overcome the technical difficulties associated with determining the precise price for each MWh of electricity sold and delivered during the period of application of the levy. Furthermore, the irrebuttable nature of the presumptions set out in points 1° and 2° of the second subparagraph of Article 22ter(5) of the Electricity Law is justified, as the system is based on sales strategies adopted in advance, in agreement with the operators of the nuclear power plants concerned.
20 The referring court states, first of all, that the fact that the alleged illegalities originate in points 1° to 6° of the second subparagraph of Article 22ter(5) of the Electricity Law has no bearing on its jurisdiction to rule on the legality of the decision of 28 February 2023. On the substance, it finds that the presumptions established in those provisions, on which that decision bases its model for declaring revenue, which is the preliminary step to determining the levy owed by each debtor, are 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 its actual revenues.
21 In that regard, that court states that it does not see sufficient technical justification for defining presumptions that are supposed to reflect the sales strategies specific to each technology or other particular feature, rather than allowing debtors to document their actual sales strategies and actual revenues, at least where possible. The cap introduced by Regulation 2022/1854 and, subsequently, by the Belgian legislature, would only apply to electricity from certain technologies, and the reporting system would be based on the traceability of certain data with a particular installation. Thus, in its view, while technical difficulties may justify the use of presumptions, they do not justify the irrebuttable nature of those presumptions.
22 Furthermore, it follows from Articles 6 to 8 of Regulation 2022/1854, read in conjunction with Article 2(5) and (9) thereof, that the calculation of surplus revenue must be based on the revenue actually obtained by producers on the market. That is confirmed by the structure of the system put in place, which, at first glance, requires reference to actual revenue. Recital 30 of that regulation supports that assessment. While recital 37 of that regulation indicates that Member States should be able to use reasonable estimates to calculate the cap on market revenue, that recital cannot override the provisions of that regulation. The referring court adds that, in any event, it is not convinced that the possibility of allowing Member States to use estimates 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 revenues actually obtained.
23 In the second place, with regard to the period covered by the contested decision, Electrabel and FEBEG and Others claim, in essence, that, in so far as the decision of 28 February 2023 establishes a declaration model for the period from 1 August to 31 December 2022, whereas, pursuant to Regulation 2022/1854, the cap period begins on 1 December 2022, that decision infringes, in particular, Articles 6 to 8, 20 and 22 of that regulation, Article 288 TFEU, the principles of primacy and effectiveness of EU law and the principle of sincere cooperation. They note that the Commission’s proposal of 14 September 2022 for a Council Regulation on emergency intervention to address high energy prices (COM(2022) 473 final), which led to the adoption of Regulation 2022/1854, provided for the possibility for Member States to decide on the early application of the cap, but that that possibility was not retained in the version of that regulation which was ultimately adopted. Furthermore, that regulation does not allow Member States to collect surplus revenues retroactively.
24 The CREG and the Belgian State respond, in essence, that, first, the Belgian legislature was entitled to act as it did for the period from 1 August to 30 November 2022 by virtue of its general fiscal competence and, secondly, Article 8(1) of Regulation 2022/1854 provides, moreover, that Member States may ‘maintain or introduce measures that further limit the market revenues’ and, thirdly, the fact that the possibility of voluntary early application of that regulation provided for in the proposal for a regulation referred to in the previous paragraph of this judgment was not included in the text finally adopted is explained by the fact that such a provision is unnecessary.
25 The referring court observes that the Belgian legislature did not justify why it set the date of entry into force of the levy at issue at a date different from that provided for in Regulation 2022/1854 and that it merely stated that the system put in place is not contrary to the principle of non-retroactivity in tax matters. Nor do the preparatory works for the Electricity Law indicate that the levy at issue is of a hybrid nature, namely, a national measure independent of EU law for the period from 1 August 2022 to 30 November 2022 and the implementation of Regulation 2022/1854 for the period from 1 December 2022 onwards. In view of those factors, that court considers that Article 22(2) of that regulation could, at first sight, preclude national measures implementing the regime provided for in that regulation from a date earlier than that indicated in that provision, having regard to the principles of primacy, effectiveness and sincere cooperation. In that regard, it considers that Article 8(1)(a) of Regulation 2022/1854 is unclear as to whether the power conferred on Member States by that provision to maintain or introduce measures that further limit market revenue includes the power to implement a capping regime before the date of entry into force of that regulation.
26 In those circumstances the cour d’appel de Bruxelles (Court of Appeal, Brussels), decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Articles 6, 7 and 8 of [Regulation 2022/1854], read in conjunction with Article 2(5) and (9) thereof, in the light of its recitals as a whole, and in conjunction with, in particular, Article 288 TFEU and Article 6 TEU, be interpreted as precluding the application of national measures, such as those contained in [Article 22ter] of the Electricity Law, and in particular the second subparagraph of paragraph 5 thereof, which provide that the cap laid down in Article 6 of the regulation is to be reflected in the form of a levy on surplus revenues of electricity producers, where the surplus nature of the revenues in respect of the cap set is established on the basis of market revenues determined, for certain installations, on the basis of irrebuttable presumptions calculating theoretical revenues (see points 1° and 2° of the second subparagraph of [Article 22ter(5)] of the Electricity Law), preventing the debtors of the levy from declaring and being assessed on the basis of their actual revenues? (2) Must Articles 6, 7 and 8 of [Regulation 2022/1854], read in conjunction with Article 2(5) and (9) thereof, in the light of its recitals as a whole, and in conjunction with, in particular, Article 288 TFEU and Article 6 TEU and with the principle of proportionality, be interpreted as precluding the application of national measures, such as those contained in [Article 22ter] of the Electricity Law, in particular the second subparagraph of paragraph 5 thereof, which provide that the cap laid down in Article 6 of the regulation is to be reflected in the form of a levy on surplus revenues of electricity producers, where the surplus nature of the revenues in respect of the cap set is established on the basis of market revenues determined, for certain installations (see points 3°, 4°, 5° and 6° of the second subparagraph of [Article 22ter(5)] of the Electricity Law), on the basis of presumptions presented as rebuttable but which can be rebutted only, first, by the provision of evidence of their actual revenues from all their installations, including installations not coming within the scope of the regulation, and, [secondly], by the continued recourse to certain presumptions, thereby preventing debtors of the levy from declaring and being assessed on the basis of their actual revenues? (3) Must Articles 6, 7, 8 and 22 of [Regulation 2022/1854], read in conjunction with the principles of the primacy and effectiveness of EU law and the principle of sincere cooperation (Article 4(3) TEU), with, in particular, Article 288 TFEU, and in the light of its recitals, be interpreted as precluding the application of national measures taken after the entry into force of that regulation, such as [Article 22ter(1)] of the Electricity Law, inserted by the Law of 16 December 2022, and providing for the implementation of the system applying a cap on electricity producers’ market revenues from a date earlier than 1 December 2022, such as the date of 1 August 2022?’
27 The referring court has requested that the present preliminary ruling be dealt with under the expedited preliminary ruling procedure provided for in Article 105 of the Rules of Procedure of the Court.
28 That request was rejected by order of the President of the Court of 10 January 2024, Electrabel and Others (C‑633/23, EU:C:2024:41).
29 As a preliminary point, it should be noted, first, that, according to the wording of its first two questions, which should be examined together, the referring court is concerned with the method of determining the revenues from the contract to which the ‘cap laid down in Article 6’ of Regulation 2022/1854 applies. It is apparent from the request for a preliminary ruling that, in the present case, the cap on market revenues is, pursuant to Article 22ter(4) of the Electricity Law, set at EUR 130 per MWh of electricity produced, whereas Article 6(1) provides that the market revenues referred to in that article are capped at a maximum of EUR 180 per MWh of electricity produced. However, Article 8(1)(a) of that regulation provides, in essence, that Member States may, in particular, introduce measures which further limit those revenues.
30 It must therefore be concluded that the cap provided for by the national legislation at issue in the main proceedings is not that ‘provided for in Article 6’ of Regulation 2022/1854, but a national cap set pursuant to Article 8(1) of that regulation.
31 Secondly, although the referring court seeks, by its first two questions, an interpretation of Article 6 TEU, it does not explain why that interpretation is necessary for the purposes of resolving the disputes in the main proceedings. The request for a preliminary ruling does not contain any grounds explaining why that court has questions about the interpretation of that article or setting out the link it would establish between that article and the national legislation at issue in the main proceedings. Consequently, the interpretation of Article 6 TEU does not appear to be necessary for the purposes of resolving those disputes.
32 In the light of those considerations, it should be understood that, by its first and second questions, the referring court asks, in essence, whether Articles 6 to 8 of Regulation 2022/1854, read in conjunction with Article 2(5) and (9) thereof, Article 288 TFEU and the principle of proportionality, must be interpreted as meaning that they preclude national legislation under which the amount of revenue to which a cap on market revenue provided for in Article 8 applies is determined, for the electricity generation installations concerned, either on the basis of irrebuttable presumptions or on the basis of rebuttable presumptions, but which can be rebutted only by proving the actual revenue generated by all the installations of the operator concerned and by means of other presumptions.
33 In that regard, it should be noted 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) are capped at a maximum of EUR 180 per MWh of electricity produced. Article 6(2) adds that Member States are to 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. In addition, paragraph 3 of that article stipulates that Member States are to put effective measures in place to prevent a circumvention of the obligations on producers pursuant to paragraph 2 and, in particular, are to make sure that the cap on market revenues is effectively applied in cases where producers are controlled, or partially owned, by other undertakings, in particular where they are part of a vertically integrated undertaking. Article 6(4) of Regulation 2022/1854 specifies that Member States are to decide whether to apply the cap on market revenues at the time of settlement of the energy exchange or thereafter.
34 Furthermore, although Article 6(5) thereof provides that the Commission is to provide guidance to Member States on the implementation of that article, it is undisputed that that has not been done.
35 With regard to Article 7 of Regulation 2022/1854, paragraph 1 states that the cap on market revenues provided for in Article 6 of that regulation applies to market revenues from the sale of electricity produced from the energy sources listed in that provision. It also specifies, in Article 7(6), that producers, intermediaries and relevant market participants, as well as, where relevant, system operators, are to provide to competent authorities of Member States and, where relevant, to the system operators and nominated electricity market operators, all necessary data for the application of Article 6, including on the electricity produced and the related market revenues, regardless of the market timeframe in which the transaction takes place and of whether the electricity is traded bilaterally, within the same undertaking or in a centralised marketplace.
36 Article 8(1) of Regulation 2022/1854 provides that Member States may adopt other measures, which are listed in points (a) to (e) of that paragraph. In particular, according to point (a), they 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, including the possibility to differentiate between technologies, as well as the market revenues of other market participants. Article 8(2) specifies that the measures referred to in paragraph 1, in accordance with that regulation, are proportionate and non-discriminatory, do not jeopardise investment signals, ensure that the investments and operating costs are covered, do not distort the functioning of electricity wholesale markets and, in particular, do not affect the merit order and the price formation on the wholesale market, and are compatible with EU law.
37 Furthermore, Article 2(5) of Regulation 2022/1854 specifies that, for the purposes of that regulation, the concept of ‘market revenue’ refers to the realised income a producer receives in exchange for the sale and delivery of electricity in the European Union, regardless of the contractual form in which such exchange takes place, including power purchase agreements and other hedging operations against fluctuations in the wholesale electricity market and excluding any support granted by Member States. Article 2(9) also states that the concept of ‘surplus revenues’ refers to a positive difference between the market revenues of producers per MWh of electricity and the cap on market revenues of EUR 180 per MWh of electricity provided for in Article 6(1) of that regulation.
38 It must therefore be noted that, although none of the relevant provisions of Regulation 2022/1854 specifies the methodology for determining the market revenue to which the revenue cap measure imposed by that regulation must be applied, it nevertheless follows from the wording of those provisions that, as the Advocate General also noted, in essence, in points 38 and 39 of his Opinion, that cap cannot be applied to theoretical revenues which do not correspond to the reality of the market, but must be applied to amounts that reflect the actual revenues received by the operators concerned.
39 Recital 30 of that regulation states that the cap on market revenues should be set ‘on market revenues rather than on total generation revenues’ and that, regardless of the contractual form under which electricity trading takes place, the cap on market revenues should apply ‘only’ to ‘realised’ market revenues.
40 That being so, since no provision of Regulation 2022/1854 specifies the method for determining the revenue from the market to which the revenue cap measure is to apply, it is for the Member States to determine that method. Nevertheless, in so doing, Member States are implementing that regulation, and therefore EU law, and must therefore exercise their powers in accordance with that law and, in this case, in a manner that preserves, in particular, the effectiveness of the provisions of that regulation (see, by analogy, judgments of 21 December 2023, Commission v Denmark (Maximum parking time), C‑167/22, EU:C:2023:1020, paragraph 43 and the case-law cited, and of 30 April 2025, Alenopik, C‑745/23, EU:C:2025:294, paragraph 28).
41 It therefore remains to be determined whether, in the context of that exercise, Member States are permitted to use presumptions in order to determine precisely the amount of revenue from the market to which they apply the revenue cap measure imposed by Regulation 2022/1854.
42 In that regard, it should be noted, first, that, according to recital 37 of that regulation, in order to ensure an effective enforcement of the cap on market revenues, the producers, intermediaries and relevant market participants should provide the necessary data to the competent authorities of Member States and, where appropriate, to the system operators and nominated electricity market operators, but that, in view of the large number of individual transactions for which competent authorities of Member States have to ensure the enforcement of the cap on market revenues, those authorities should have the possibility to use ‘reasonable estimates’ for the calculation of the cap on market revenues.
43 As the Advocate General also noted in point 50 of his Opinion, an estimate is by its nature an approximation of a given value and does not always represent an accurate value. Consequently, possible differences between actual revenues and imputed revenues may be permitted without that automatically rendering the use of presumptions incompatible with Regulation 2022/1854, provided that those differences, which may be either negative or positive, remains reasonable, that is to say, moderate, and that the estimates used in applying those presumptions are representative of the reality of the market during the period in question.
44 Secondly, as is apparent from Article 1 thereof, Regulation 2022/1854 aims, in particular, to introduce an emergency intervention to mitigate the effects of high energy prices through exceptional, targeted and time limited measures, and those measures are aimed, in particular, at introducing a cap on market revenues that certain producers receive from the generation of electricity and redistributing them to final electricity customers in a targeted manner.
45 In such an emergency context and given the objective of protecting final electricity customers, the use of reasonable estimates, including in the form of presumptions, 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 achieving that objective.
46 Thirdly, it should be noted that, under Article 6(3) of that regulation, Member States are required to put in place effective measures to ensure that the cap is applied effectively and to prevent it from being circumvented. In view of the provisions of Article 6(2) and Article 7(6) of that regulation, the wording of which is set out in paragraphs 33 and 35 of this judgment, it may be necessary to collect and monitor a very large amount of data. That circumstance therefore also allows it to be accepted that, depending on the specific characteristics of the national market in question or the technical difficulties that may exist in isolating the revenue that must actually be subject to the cap imposed by that regulation, it may be necessary to rely on presumptions.
47 The significant administrative burden that may result from the implementation of that capping measure is recognised by the EU legislature, in so far as, in Article 7(3) of Regulation 2022/1854, it offers Member States, in particular, the option of deciding, especially where the application of the cap provided for in Article 6(1) of that regulation leads to a significant administrative burden, that that cap is not to apply to producers generating electricity with power-generating facilities with an installed capacity of up to 1 MW.
48 It follows from those factors that Regulation 2022/1854 does not preclude a Member State from using presumptions to determine the amount of revenue from the market that is to 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.
49 In that regard, it should be noted, first, that the fact that a Member State has chosen, where appropriate, to establish, on the basis of objective distinguishing factors, different presumptions depending on the operators, the installations or the technology concerned, or a series of presumptions, does not establish that the condition set out in the previous paragraph of this judgment is not satisfied, provided that, for each of the categories of operators, installations or technology that may be concerned, the presumption established makes it possible to obtain a reasonable estimate of the revenue specific to that category, the possibility of distinguishing between technologies being, moreover, expressly authorised by Regulation 2022/1854, in particular Article 8(1)(a) thereof. Secondly, even the use of irrebuttable presumptions is likely to satisfy that condition, in particular where those presumptions relate to a limited and specific category of producers whose revenues, due to circumstances specific to them or the particularities of the national market in question, have been previously fixed in agreement with the public authorities or are governed by national regulations, so that the producers concerned cannot easily deviate from them.
50 It also follows from those findings that the use of such presumptions, provided that they satisfy that condition, cannot be regarded as contrary to the principle of proportionality. In that regard, it should be noted that that principle, which is one of the general principles of law and must therefore be observed by Member States when implementing EU law, in accordance with the case-law referred to in paragraph 40 of this judgment, requires that the means employed be appropriate for achieving the legitimate objectives pursued by the legislation concerned and do not go beyond what is necessary to achieve them (see, to that effect, judgments of 21 February 2008, Netto Supermarkt, C‑271/06, EU:C:2008:105, paragraph 19 and the case-law cited, and of 8 December 2020, Hungary v Parliament and Council, C‑620/18, EU:C:2020:1001, paragraph 111).
51 Given the urgency of implementing the revenue cap measure imposed by Regulation 2022/1854, with the aim of protecting final electricity customers and given the exceptional and time limited nature of that measure, the use of presumptions, including, where appropriate, irrebuttable presumptions in order to determine precisely the amount of revenue to which that measure must be applied appears proportionate, provided that, as mentioned in paragraph 48 of this judgment, 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.
52 The specific assessment of whether a given presumption meets that condition is a matter of fact and therefore falls within the jurisdiction of the national authorities, acting under the supervision of the national courts, in this case the referring court. However, in accordance with its settled case-law, the Court, ruling on a preliminary ruling, may provide guidance to assist it in its assessment (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).
53 Thus, for the purposes of that assessment, account must be taken of all the factual and technical factors characterising not only the situation of the operators and installations concerned, but also the national electricity market. In particular, the extent, taking into account those specific features, of the obstacles to the collection and verification of data which would make it possible to determine, within a timeframe compatible with the urgency of achieving the objective of protecting final electricity customers, the exact revenues of the installations or operators subject to the cap measure in question, as well as whether the presumptions made are sufficiently accurate to avoid a significant overestimation or underestimation of the revenues generated by the operators concerned, and whether there is a corrective mechanism allowing, where appropriate, for operators or national authorities to claim actual revenues in order to rectify the result of those presumptions if they do not lead to reasonable estimates that are representative of the reality of the market during the period in question.
54 Furthermore, in view of the findings in paragraph 40 of this judgment, it is not necessary for the Court to rule on the interpretation sought of Article 288 TFEU.
55 In view of all the foregoing considerations, the answer to the first and second questions is that Articles 6 to 8 of Regulation 2022/1854, read in conjunction with Article 2(5) and (9) thereof and with the principle of proportionality, must be interpreted as meaning that they do not preclude national legislation under which the amount of revenue to which a cap on market revenue provided for in Article 8 applies is determined, depending on 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, first, by justifying the actual revenues generated by all the facilities of the operator concerned and, secondly, by means of other presumptions, 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.
56 By its third question, the referring court asks, in essence, whether Articles 6 to 8 and Article 22(2)(c) of Regulation 2022/1854, read in conjunction with Article 288 TFEU and the principles of the primacy and effectiveness of EU law and of sincere cooperation, must be interpreted as meaning that they preclude national legislation adopted after the entry into force of that regulation which provides for the application of a measure capping market revenue similar to that imposed by that regulation, but for a period prior to that laid down by that regulation.
57 In that regard, it should be noted that, according to Article 22(1) of Regulation 2022/1854, the latter entered into force on the day following its publication in the Official Journal of the European Union, namely, on 8 October 2022. According to Article 22(2)(c) of that regulation, Articles 6, 7 and 8 thereof applied from 1 December 2022 to 30 June 2023.
58 Nothing in Regulation 2022/1854 indicates that it would apply to a measure capping revenue introduced by national legislation for a period prior to its entry into force, nor, a fortiori, that such legislation would have to comply with the conditions laid down in that regulation. Therefore, as the Advocate General also noted in point 59 of his Opinion, 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, in this case by adopting a measure capping market revenues similar to that required by Regulation 2022/1854, but with a different temporal scope from that provided for by that regulation, or that they could exercise that power only subject to express authorisation to that effect from the EU legislature.
59 The fact that such national legislation was adopted even though that regulation was already in force is irrelevant in that regard. None of the provisions of that regulation indicates that, by adopting it, the EU legislature intended to deprive Member States of that option or to make its exercise subject to such authorisation. On the contrary, as is apparent from the wording of Article 8(1) of Regulation 2022/1854, the EU legislature expressly envisaged the possibility that Member States might introduce or maintain measures to cap market revenues that are stricter than the cap provided for in Article 6(1) of that regulation. In that regard, recital 1 of that regulation also points out that very high prices had been observed on the electricity markets since September 2021 and that the Russian Federation’s war of aggression against Ukraine had led to significant further increases and increased volatility in electricity prices. Furthermore, the EU legislature noted, in recital 5 of that regulation, that all Member States had been affected by that energy crisis, albeit to varying degrees, and it is apparent from recital 28 thereof that an extreme and sustained increase in prices had been observed since February 2022.
60 Those factors indicate that it was with full knowledge of the Member States’ ability to act within the scope of their powers, taking into account the specific characteristics of their national markets, that the EU legislature decided not to regulate, at EU level, the capping of market revenues beyond the temporal scope of application provided for in Regulation 2022/1854, nor, a fortiori, to deprive Member States of their competence to regulate that matter for a period prior to the period of application provided for in that regulation.
61 In that regard, as already noted in paragraph 40 of this judgment, Member States must exercise their powers in compliance with EU law. However, in the present case, apart from the questions raised by the referring court in its first and second questions, it does not appear from the request for a preliminary ruling that that court has any doubts as to the substantive compatibility of the national legislation at issue in the main proceedings with other provisions of EU law which may be applicable ratione temporis.
62 Neither Article 288 TFEU nor the principles of primacy and effectiveness of EU law or of loyal cooperation are, in this case, capable of justifying a different assessment.
63 First, neither Article 288 TFEU nor the principles of primacy and effectiveness of EU law can alter the scope of a regulation as decided by the EU legislature.
64 Secondly, it is true that, under the principle of sincere cooperation laid down in Article 4(3) TEU, Member States must refrain, in particular, from any measure which could jeopardise the attainment of the European Union’s objectives. However, in view, in particular, of what has been noted in paragraph 60 of this judgment and of the fact that the introduction of a measure capping revenue similar to that provided for in Regulation 2022/1854 necessarily pursues, by its nature, 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 is contravening that principle.
65 In view of all the foregoing considerations, the answer to the third question is that Articles 6 to 8 and Article 22(2)(c) of Regulation 2022/1854, read in conjunction with Article 288 TFEU and the principles of the primacy and effectiveness of EU law and of sincere cooperation, must be interpreted as meaning that they do not preclude national legislation adopted after the entry into force of that regulation which provides for the application of a measure capping market revenue similar to that imposed by that regulation, but for a period prior to that laid down by that regulation.
66 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.