A case brought against the rules on the cancellation of mandatory procurement rights granted to a business operator
A case has been initiated before the Constitutional Court on compliance of Section 312(3) of the Electricity Market Law with Section 92 of the Constitution and on compliance of Sub-paragraphs 48.5, 48.8 and 60.1 (in the wording in force until 31 March 2022) of the Cabinet Regulation No 560 “Regulation Regarding the Generation of Electricity Using Renewable Energy Resources, and also the Procedures for Price Determination and Monitoring” of 2 September 2020 with Section 105 of the Constitution.
The contested norms determine cases in which the State Construction Control Bureau is to decide on the cancellation of the right to mandatory procurement and on imposing the obligation to reimburse the State aid received by the business operator, and the allocation of the burden of proof in the event of a dispute on the mentioned circumstances.
It follows from the application and the attached documents that the applicant participated in the mandatory procurement and within the framework of the mandatory procurement sold electricity produced from renewable energy resources – biomass. Based on the contested norms, the State Construction Control Bureau decided to cancel the right to mandatory procurement and impose the obligation to reimburse the State aid received by the applicant.
According to the applicant, the contested norms do not allow the State Construction Control Bureau to provide an individual assessment of the impact of the applicant’s infringement on the calculation of the State aid, as required by the principle of proportionality. Thus, the applicant’s right to property under Section 105 of the Constitution had been infringed.
The contested norm of the Electricity Market Law, on the other hand, imposes a disproportionate and overly general burden of proof on the applicant to prove that the State aid has been received in compliance with the requirements of the regulatory enactments. Thus, the applicant’s right to a fair trial provided for in Section 92 of the Constitution has been violated.
The Constitutional Court asked the institutions that had issued the contested deeds – the Parliament and the Cabinet of Ministers – to submit a written reply to the Constitutional Court by 25 November 2024, specifying the facts of the case and providing legal substantiation. The deadline for the preparation of the case is 25 February 2025. The Court will decide on the procedure and date for hearing the case once the case is prepared.
Related Case: 2024-27-0103
Linked case: 2024-27-0103