Announcements in 2010 of a cut in electricity purchase tariffs triggered an upsurge, particularly in August 2010, in connection applications submitted to distribution network operators in mainland France and in zones not interconnected to the mainland national grid (since at the time the applicable tariff depended on the date at which a complete connection application was filed). By a decree of 9 December 2010 (the “moratorium decree”) the Government suspended the conclusion of new contracts with purchase obligations for a three-month period, and stated that any applications not approved by 2 December 2010 would have to be resubmitted at the end of this three-month period, based on a new decision fixing the purchase price for photovoltaic electricity. That tariff decision was issued on 4 March 2011, and significantly reduced the electricity purchase prices. A tender system was developed in parallel.
A ruling given by the French Council of State on 16 November 2011 rejecting appeals against the moratorium decree generated a large volume of legal proceedings against Enedis and EDF in late 2011 which continued through 2012, 2013, 2014 and 2015. Since March 2016, new actions for compensation in relation with the photovoltaic moratorium are definitively barred.
Most of these legal proceedings were initiated by electricity producers who argued that they were forced to abandon their projects because the new electricity purchase tariffs made operating conditions less favourable. These producers consider the network operators responsible for this situation, on the grounds that they did not issue the technical and financial connection proposals in time for them to benefit from more advantageous electricity purchase terms.
The first instance and appeal court rulings given have varied in their reasoning and verdicts: some have rejected all claims while others have awarded indemnities, which have generally been smaller than the amounts initially claimed.
In December 2015 Versailles Appeal Court decided to apply to the Court of Justice of the European Union (CJEU) for a preliminary ruling on the point of whether the tariff decisions of 2006 and 2010 complied with European law on State aid.
This application was considered irreceivable for procedural reasons. On 20 September 2016, Versailles Appeal Court made another application to the CJEU for a preliminary ruling on the same point, and decided to suspend its own ruling. In an order of 15 March 2017, the CJEU confirmed that the decisions of 10 July 2006 and 12 January 2010 setting the purchase tariffs for photovoltaic electricity constituted “intervention by the State or using State resources”, one of the four criteria that characterise State aid. The Court stated that such a support measure, implemented without prior notification to the Commission, is illegal, and concluded that it was now up to the national courts to act accordingly, particularly by banning application of these illegal decisions.
Several courts found in favour of Enedis during 2018. Notably, in early July 2018 Versailles Appeal Court dismissed 150 producers’ claims, because there was no evidence establishing misconduct by Enedis, or because there was no causal link between Enedis’ misconduct and the prejudice, or because the prejudice was not deemed eligible for compensation since the tariff decisions of 2006 and 2010 are illegal, as the European Commission did not receive the prior notification required by State aid control rules. Appeals were filed before the Court of Cassation against most of these decisions. On 18 September 2019, the French Court of Cassation issued several decisions rejecting claims concerning both Enedis and EDF, judging the aid illegal because the tariff decisions were not notified to the European Commission as required by Article 108 of the TFEU. Consequently, the Court of Cassation concluded that the prejudice of producers who could not benefit from that aid is deemed not legally reparable.
In parallel to the compensation claims before civil courts, EDF and Enedis sought to apply their Civil Liability insurance policy, but the insurers refused their claim. The French Court of Cassation considered in a ruling of 9 June 2015 (for the Green Yellow case) that the insurance payment was due and that the distribution network operator was at fault. Following that ruling, Enedis and EDF brought action against their insurers in April 2017, applying to the courts for formal recognition of two partial serial claims. If the courts were to recognise the existence of two partial serial claims, a single excess and a single limit would apply for all claims with the same technical cause.
Several legal actions were begun following the sale of the Ausimont SpA industrial complex to Solvay Solexis SpA in 2002. The criminal proceedings are now closed, but several proceedings are still ongoing:
On 24 February 2016, Enedis received a summons for proceedings brought before the Paris Regional Court by an American company, Quadlogic Controls Corporation (QCC), for alleged infringement of a European patent held by QCC. Enedis strongly contests both QCC’s inventive input and the alleged infringement.
In November 2017, the Paris Regional Court ruled in favour of Enedis and cancelled QCC’s European patent in France. QCC filed an appeal against this ruling on 12 March 2018. The matter is currently before the Paris Appeal Court.
