Décision de justice

Electricity prices: the urgent applications judge at the Conseil d'État maintains the increase in the amount of electricity sold by EDF to its competitors

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Trade unions and shareholders of Electricité de France (EDF) have applied to the Conseil d'État to suspend the Government's decision to increase the amount of electricity that EDF must sell to its competitors at a capped price (ARENH). Neither the examination of the application by the judge nor the hearing demonstrated that this measure created an immediate threat to the financial interests of EDF, the employment conditions of its workforce or the ownership interests of its employee shareholders. On the other hand, in a context of sharp price rises, the increase in the ARENH volume should help to significantly limit the increase in electricity prices. The urgent applications judge considered that the contested measure is in the public interest and rejected the application for its suspension.

As part of the opening up of the electricity market to competition, a transitional scheme known as ARENH (regulated access to historic nuclear electricity) allows electricity suppliers in competition with EDF to buy a part of the electricity producer's nuclear power at a fixed rate.
Against a background of issues with the operational availability of French power plants and gas supplies in Europe and in order to contain the increase in the public prices of electricity, in March the Government increased the maximum amount of ARENH that EDF can sell to its competitors from 100 TWh to 120 TWh. Fearing a serious economic impact on EDF, several unions, members of the board of directors and representatives of the employee shareholders of the EDF group made an application for the urgent suspension of the Decree(1) and the Order(2) amending the maximum ARENH volume for 2022.

The urgent applications judge pointed out that the contested measure is intended to limit the impact of the increase in electricity prices on the supply costs of the suppliers that benefit from the measure, and, indirectly, on the prices they are able to offer their end customers.

The examination of the application thus revealed that the measure should limit the increase in the price of electricity to 14% to 16% for low-consumption businesses, around 20% for other companies and public bodies and 60% to 100% for electro-intensive industrial consumers. Without this measure, these increases would respectively be 23%, 40% and between 100% and 130% for electro-intensive consumers.

In a context of sharp price rises on the wholesale electricity market, which have had significant repercussions for both private consumers and businesses, the urgent applications judge considered that, under these conditions, the contested measure is in the public interest.

The urgent applications judge observed that neither the documents provided for the examination of the application nor the debate at the hearing demonstrated that the contested texts were creating an immediate threat to the financial interests of EDF, the conditions of employment of its workforce or the ownership interests of its employee shareholders. Indeed, the arguments put forward do not allow the scale of the measure's impact on the company's overall financial equilibrium to be measured, since this must also take account of the fact that several nuclear plants are offline and of the increase in electricity prices, which affects EDF's income on the wholesale market.

The emergency claimed by the parties is therefore not of a nature to counterbalance the urgency of the public interest of the measure for consumers. For this reason, the urgent applications judge rejected the application for its urgent.

> Decisions nos. 462841, 463190 and 463411 of 5 May 2022
 

(1) Decree no. 2022-342 of 11 March 2022 

(2) Order of 11 March 2022