chapter  5
6 Pages

Legal assessment of “discriminating market barriers” in national support systems

WithMarkus 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 withArticle 34 Treaty on the Functioning of the European Union (TFEU 2012), according to which quantityrelated 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 ofArticle 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).