EU law does not widen CMA’s remedial jurisdiction

27/02/18, EU/Competition

EDF Energy (Thermal Generation) Ltd. & SSE Generation Ltd. v. Gas & Electricity Markets Authority

The Competition and Markets Authority (“CMA”) has dismissed an energy code modification appeal brought by EDF and SSE entities against a decision of the Gas and Electricity Markets Authority to reject a modification to the Connection and Use of System Code under which National Grid levies charges on users of the electricity transmission system. The Appellants had alleged that generators in Great Britain had been overcharged by more than £120 million, and sought repayment from National Grid.

The modification for which the Appellants contended had been premised on a false belief that EU Regulation 838/2010 had been breached. That Regulation caps the level of certain transmission charges. The CMA has ruled that the Appellants had misconstrued the Regulation, specifically in relation to the cost of connections between offshore wind farms and the onshore grid. It was wrong to construe the EU Regulation by reference to domestic practice.

The CMA also rejected the Appellants’ contention that EU law compels a broader interpretation of the CMA’s jurisdiction than the jurisdiction which statute expressly creates. In such an energy code modification appeal, the CMA does not have the jurisdiction to take remedial action in respect of matters outside the scope of the decision appealed against.

The CMA’s determination is available here.

Richard Gordon QC and Gerard Rothschild acted for National Grid.

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