Appeal granted in dispute over energy regulator’s refusal to compensate for temporary shut downs

The Supreme Court is to hear an appeal in a dispute between renewable energy firms and the energy regulator over a decision not to compensate them if they are told to temporarily shut down generation due to issues with the electricity grid.
The case was brought by Energia Group Holdings and a number of its subsidiaries, along with GR Wind Farms and its subsidiaries, against the Commission for Regulation of Utilities (CRU).
The wind farm firms challenged a 2022 decision by the CRU not to implement an EU regulation where compensation is to be paid when the firms are told to switch off their wind turbines due to grid limitations.
In 2023, the High Court ruled that the compensation system established by the decision, which was made through the CRU’s “Single Energy Market Committee”, was “fundamentally flawed” and could not be allowed to stand.
The wind farm companies had claimed the CRU was not entitled to make the decision and must implement the EU Clean Energy Package Electricity Regulation.
Article 13.7 of that regulation provides that power-generating companies would receive financial compensation when they are told to reduce their energy output due to grid network limitations or issues.
The CRU disputed the claims and EirGrid, the grid manager, was a notice party in the case.
After the High Court found largely in favour of the firms, the CRU sought a direct appeal to the Supreme Court (rather than the Court of Appeal) arguing there were exceptional circumstances warranting such an appeal.
In a decision published this week, a panel of three Supreme Court judges agreed to grant an appeal as exceptional circumstances had been identified.
The court recognised that it was a very urgent matter, not only for the parties, but also for the operation of the electricity market on the island of Ireland.
Case management would take place with a view to having an expedited hearing of the appeal.
The Supreme Court noted the parties were agreed that a reference to the Court of Justice of the EU (CJEU) on the interpretation of article 13(7) of the regulation was important for the current and future regulation of the electricity market.
It said the CRU had emphasised the fact that there is little guidance on the meaning of this provision, and it considers that an authoritative decision from the CJEU is necessary.
The CRU also contended that regulation does not have direct effect and that in such circumstances the High Court could not properly have set aside the decision as being contrary to EU law.