The High Court has quashed a 2022 decision by the Commission for Regulation of Utilities (CRU) on compensation for electricity generators affected by non-market redispatch, and issued declarations on how that compensation is to be treated under EU law.
In a judgment delivered on 1 July 2024, Mr Justice Mark Sanfey dealt with the orders to follow his substantive ruling of November 2023 in two linked judicial review cases brought by groups of wind energy companies. The CRU accepted that its decision should be quashed. The court also made declarations setting out legal conclusions from the earlier ruling.
The quashed decision, made on 22 March 2022, was the CRU’s “Decision Paper on Dispatch, Redispatch and Compensation Pursuant to Regulation (EU) 2019/943” (SEM-22-009). The court declared that the EU regulation applied from 1 January 2020 and that compensation for non-market redispatch was payable from that date and could not be deferred.
The declarations state that compensation must account for foregone financial supports, such as REFIT and RESS, and lost revenues from corporate power purchase agreements. A generator subject to non-market redispatch must receive compensation that puts it in the same position as if it had not been redispatched. The court also declared that compensation cannot be split into separate determinations for market revenues and foregone financial support, and that eligibility or calculation cannot depend on when a generating facility was commissioned. Participation in ex-ante electricity markets is not required to qualify.
The court declared that the transmission system operator licensed by the CRU must pay the compensation to the generator. EirGrid, which was a notice party, sought additional declarations requiring the CRU to establish calculation and funding mechanisms and requiring generators to provide information about prior payments. The judge declined to make those declarations, saying they did not arise directly from matters considered or findings made in the case. He also rejected EirGrid’s request to qualify the payment obligation by allowing time to secure funding.
The applicants had sought liberty to apply for further relief if the CRU did not give effect to the declarations. The judge granted liberty to apply, but not for the purpose of raising alleged non-compliance with those declarations. He said any such issue could be brought in new proceedings after the appeal process. The CRU had instructed lawyers to appeal the substantive decision.
The court did not decide costs or whether its order would be stayed in this judgment. Those matters were listed for mention on 10 July 2024, with written submissions due by 8 July.