In response to an appeal by EDF and its employee and shareholder organisations, the Conseil d’État today ruled that the Government’s decision to increase the amount of electricity sold by EDF to its competitors in 2022 as part of the (ARENH) is legal. The Conseil d’État found that this measure, taken in exceptional circumstances to limit rising prices, was not disproportionate to attaining the objectives of free choice of supplier and price stability. Nor did it disproportionately infringe upon EDF’s freedom to conduct business or break EU law.
As part of opening up the French electricity market, the Law of 7 December 20101, implemented the ARENH (regulated access to incumbent nuclear energy), requiring EDF to sell part of its nuclear production at a capped price to electricity suppliers at their request. The purpose of this temporary measure, in force until 2025, was to ensure freedom of choice of electricity supplier while allowing all consumers to benefit from competitiveness in the French nuclear energy market.
Given the exceptional pressures on energy prices, especially electricity, the Government passed a decree and several orders on 11 March 2022, to increase the volume of electricity that EDF was required to sell under the ARENH2 in 2022. The aim was to prevent clients of suppliers who are competitors of EDF facing massive increases in their electricity bills. EDF, employee organisations and minority shareholder organisations asked the Conseil d’État to overturn this decision.
Following the decision of the urgent applications judge in May 2022, the Conseil d’État today ruled that this measure complies with French and European Union law.
Indeed, the Conseil d’État ruled that it did not create a new system; it only increased the maximum overall amount of electricity to be sold off by EDF as part of the ARENH for 2022.
The Conseil d’État found that the increase in the maximum overall amount of electricity from 100 to 120 terawatt-hours met the objectives of the law of 2010 – to guarantee the freedom of choice of supplier and price stability – and was not disproportionate to this purpose given the exceptional circumstances. Moreover, it judged that these measures did not disproportionately affect EDF's freedom to conduct business.
Finally, the Conseil d’État judged that neither the original ARENH nor its exceptional increase in 2022 constituted state aid to the clients of competitor suppliers, which the government would have required to report to the European Commission.
1 Law No. 2010-1488 of 7 December 2010, on the new organisation of the electricity market
2 Decree No. 2022-342 of 11 March 2022, defining the specific terms for the allocation of an additional volume of electricity, on an exceptional basis in 2022, within the framework of the ARENH (regulated access to incumbent nuclear energy), and two ministerial orders of the same date respectively on the volume of electricity to be sold off by EDF and the price