Following the numerous complains and submissions sent to the European Commission ("Commission") regarding the amendments of the green certificates support scheme by the Romanian Government, the Commission has issued its decisions on 4 May 2015 ("Decision") which will be published in the Official Journal in the upcoming weeks. The reasoning behind the Decision is very interesting as it touches on several aspects which were not clear for the market participants.

Also, the Romanian State is bound to take measures in the future to promote electricity from renewable energy sources by opening the green certificates support scheme to promote electricity from renewable energy sources to imported electricity from renewable sources from other Member States.The main points of the Decision are:

Commitments

In January 2015 the Romanian Government adopted the Memorandum on opening the green certificates support scheme to promote electricity from renewable energy sources to imported electricity from renewable sources from other Member States.

By means of this Memorandum, the Romanian Government approved the submission of a government commitment to open the green certificates scheme to promote electricity from renewable energy sources to imported electricity from renewable sources from other EU Member States, and the adoption of measures to prohibit the granting of State aid in cases where electricity is sold at negative prices in order to ensure that the green certificates promotion system does not apply to electricity from renewable energy sources sold at negative prices.

The exact terms of the Romanian authorities' commitment on the above mentioned issues are the following: producers of electricity from renewable energy sources from other Member States shall have the right to be accredited by the ANRE, on request, as beneficiaries of the support scheme under the same terms as those provided under the national legislative framework to domestic producers and on the basis of prior reciprocal agreements concluded with the respective Member States.

Consequently, such producers shall meet accreditation criteria and submit accreditation documentation in the same way as Romanian producers; to avoid overcompensation, the rules on cumulation of aid shall be taken into account in determining the level of support during the accreditation process. Producers from other Member States shall be required to provide information in this regard; producers from other Member States accredited to benefit from the Romanian support system shall receive green certificates issued by the TSO (Transelectrica SA) for electricity from renewable sources exported and 9 consumed in Romania, on the basis of proof of its origin from renewable sources; producers from other Member States which receive green certificates in Romania shall have the right to trade these certificates on Romanian centralized markets under the same terms as those provided under the national legislative framework to domestic producers; the green certificates promotion system shall apply to an annual quantity of electricity from renewable sources imported, set at the level of the volume of total electricity imports to Romania in 2013.

By the same Memorandum, the Romanian Government approved the commitment to put in place the necessary measures to ensure that the green certificates promotion system does not apply to electricity from renewable sources sold at negative prices.

In order to comply with the commitments made in the Memorandum, the Government has mandated the Ministry of Energy, Small and Medium-Sized Enterprises and the Business Environment, in consultation with the ANRE, to initiate and promote draft legislation to ensure that the above commitments are met.

Existence of aid

In its decision from 2011, as the case law of Union courts was not definitive on this point and as previous Commission case practice stood as regards certificates' support systems, the Commission did not conclude on the existence of State aid, but decided simply not to raise objections to the measure since it was found to be compatible with the internal market.

The Commission considers that (...) the Romanian green certificates system involves State aid.

The financing of the green certificates system

The concept of "intervention through State resources" is intended to cover not only advantages which are granted directly by the State but also "those granted through a public or private body appointed or established by that State to administer the aid"8 . In this sense, Article 107(1) TFEU covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector.

This has been confirmed by the Court in the Vent de Colère case17 where the Court has also ruled that a mechanism for offsetting in full the additional costs imposed on undertakings because of an obligation to purchase wind-generated electricity at a price higher than the market price that is financed by all final consumers of electricity in the national territory, constitutes an intervention through State resources.

Taking into account the above, the Commission concludes that the Romanian green certificates support system constitutes aid within the meaning of Article 107 TFEU.

Legality of the aid

Romanian amended the green certificates support system for electricity from renewable energy sources. Some amendments affect the compatibility assessment of the support scheme, since they affect the aid amount and the intensity of the aid. Romania has implemented already some of these amendments.

The Commission regrets that Romania put the aid measure into effect, in breach of Article 108(3) TFEU.

CONCLUSION

The Commission regrets that Romania put the amendments to the green certificates support system for promoting electricity from renewable sources into effect, in breach of Article 108(3) of the Treaty on the Functioning of the European Union.

However, it has decided, on the basis of the foregoing assessment, not to raise objections to the aid on the grounds that it is compatible with the internal market pursuant to Article 107(3)(c) of the Treaty on the Functioning of the European Union.

The full Decision text may be found here: [English] [Romanian]