Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 23 October 2023 – Electrabel SA and Others v Commission de Régulation de l’Électricité et du Gaz (CREG)
(Case C-633/23, Electrabel and Others)
Language of the case: French
Referring court
Cour d’appel de Bruxelles
Parties to the main proceedings
Applicants: Electrabel SA and Others
Defendant: Commission de Régulation de l’Électricité et du Gaz (CREG)
Questions referred
Must Articles 6, 7 and 8 of Council Regulation 2022/1854 1 of 6 October 2022 on an emergency intervention to address high energy prices, read in conjunction with Article 2(5) and (9) thereof, in the light of its recitals as a whole, and in conjunction with, in particular, Article 288 TFEU and Article 6 TEU, be interpreted as precluding the application of national measures, such as those contained in Article 22b of the Electricity Law, and in particular the second subparagraph of paragraph 5 thereof, which provide that the cap laid down in Article 6 of the regulation is to be reflected in the form of a levy on surplus revenues of electricity producers, where the surplus nature of the revenues in respect of the cap set is established on the basis of market revenues determined, for certain installations, on the basis of irrebuttable presumptions calculating theoretical revenues (see points 1 and 2 of the second subparagraph of Article 22b(5) of the Electricity Law), preventing the debtors of the levy from declaring and being assessed on the basis of their actual revenues?
Must Articles 6, 7 and 8 of Council Regulation 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices, read in conjunction with Article 2(5) and (9) thereof, in the light of its recitals as a whole, and in conjunction with, in particular, Article 288 TFEU and Article 6 TEU and with the principle of proportionality, be interpreted as precluding the application of national measures, such as those contained in Article 22b of the Electricity Law, in particular the second subparagraph of paragraph 5 thereof, which provide that the cap laid down in Article 6 of the regulation is to be reflected in the form of a levy on surplus revenues of electricity producers, where the surplus nature of the revenues in respect of the cap set is established on the basis of market revenues determined, for certain installations (see points 3, 4, 5 and 6 of the second subparagraph of Article 22b(5) of the Electricity Law), on the basis of presumptions presented as rebuttable but which can be rebutted only, first, by the provision of evidence of their actual revenues from all their installations, including installations not coming within the scope of the regulation, and, second, by the continued recourse to certain presumptions, thereby preventing debtors of the levy from declaring and being assessed on the basis of their actual revenues?
Must Articles 6, 7, 8 and 22 of Council Regulation 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices, read in conjunction with the principles of the primacy and effectiveness of EU law and the principle of sincere cooperation (Article 4(3) TEU), with, in particular, Article 288 TFEU, and in the light of its recitals, be interpreted as precluding the application of national measures taken after the entry into force of that regulation, such as Article 22b(1) of the Electricity Law, inserted by the Law of 16 December 2022, and providing for the implementation of the system applying a cap on electricity producers’ market revenues from a date earlier than 1 December 2022, such as the date of 1 August 2022?
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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).