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Nationally Exclusive Support Schemes for RES Electricity Production and the Free Movement of Goods

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Comment on Advocate General Bot’s Opinion in the Essent Belgium Case

Directive 2009/28/EC requires Member States to adopt support schemes for the promotion of electricity from renewable energy sources (RES) while explicitly allowing them to exclude RES electricity produced in a different Member State from their scope of application. In its notorious PreussenElektra-judgment, the ECJ held that this geographical limitation could be justified on environmental protection grounds. The pending Essent Belgium case now provides an opportunity to reconsider the conformity of nationally exclusive support schemes with the rules governing the free movement of goods. In his opinion, Advocate General Bot deems nationally exclusive support schemes to be no longer compatible with the internal market for electricity. This paper, in contrast, argues that nationally exclusive support schemes remain necessary in order to guarantee their effectiveness and cost-efficiency in the absence of a harmonised approach to RES support policies at EU level. Furthermore, it regards their national design as being in line with the principles of EU environmental and energy policy.

Affiliations: 1: Westfälische Wilhelms-Universität Münster, Germany,


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