Legal assessment of “discriminating market barriers”
in national support systems
Markus Kahles & Thorsten Müller
From the point of view of the European Law, one of the major objections to the national support
schemes for electricity from renewable sources of the Member States has always been their
restriction to domestic installations. This is because this characteristic of the national support
schemes is in conflict with the guarantee of free movement of goods in accordance with Article 34
Treaty on the Functioning of the European Union (TFEU 2012), according to which quantity-
related import limitations as well as all measures with an equivalent effect are prohibited between
Member States. However, the national support schemes restrict cross-border electricity trading in
several ways, which raises the question whether these restrictions are justified (refer to Chapter
6.2 of this book). In this regard, the 2009/28/EC Directive (Renewables Directive 2009) clarifies
in accordance with the second subparagraph of Article 3(3) that the Member States are free to use
discriminating support schemes (refer to Chapter 6.3 of this book). This legalisation by secondary
law poses the question as to whether the support schemes of the Member States should still be
measured directly by the free movement of goods (refer to Chapter 6.4 of this book).
5.2 BASIC CONFLICT: FREE MOVEMENT OF GOODS VERSUS
NATIONAL SUPPORT SCHEMES
Article 34 of TFEU includes the guarantee of free movement of goods and reads as follows:
“Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited
between Member States”.
National support schemes restrict the cross-border electricity trading and thus the free move-
ment of goods in two ways. For one, they restrict the trade with energy generated by conventional
sources because this is pushed out of the market by the promotion of renewable energies. However,
the restriction of the free movement of goods is justified on account of reasons pertaining to envi-
ronmental protection and climate change as imperative reasons that are in the interest of the public
(fundamental: ECJ 1979) and do not need to be discussed further. Here, the fact that in settled case
law, the ECJ regards environmental protection as a mandatory matter of public interest should
suffice [...] (ECJ 1985, ECJ 1988).
However, a greater justification is required for the limitation of electricity generation from
renewable energies to domestic plants. The support schemes of the Member States are always
restricted to such RES plants within their field of application
and this leads to a discrimination of
the electricity generated from renewable energies from other Member States. In this connection,
the PreussenElektra decision of the ECJ (ECJ 2001) was in favour of the Member States but
Compare for Germany with § 2 no. 1 of the Renewable Energy SourcesAct (EEG), “Erneuerbare-Energien-
Gesetz” of 25 Oktober 2008 (BGBl. I S. 2074), as last amended by Article 1 Act of 17 August 2012 (BGBl.
I S. 1754)“, English version EEG 2012.