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No discrimination against conventional generators of electricity


The modification to electricity transmission tariffs due to be introduced in April 2016 does not unlawfully discriminate against conventional generators, is rational and does not confer state aid, according to the judgment of Mr Justice Lewis.

RWE (a conventional generator of electricity) had submitted that the Electricity Directive (Directive 2009/72/EC) did not permit a distinction to be drawn between the tariffs levied on conventional and intermittent generators whereby only conventional generators would pay an element designed to reflect the costs of investment by transmission owners in ensuring that demand could be secured at peak times.

In interpreting the Directive, Mr Justice Lewis held that “the EU principle of non-discrimination, reflected in the Directive, does not preclude consideration of whether there is a material difference between the situation of one group of economic operators as compared with another group in order to see whether or not particular differential treatment is intended to be prohibited.” There was no basis for interpreting the obligations of the Authority as precluding an ability to differentiate between different classes of users on the basis of the different impact that those different users have on the costs incurred by the transmission owners.

The judgment is here.

Richard Gordon QC and Gerard Rothschild appeared for National Grid Electricity Transmission plc (an interested party), instructed by Shakespeare Martineau LLP.