Yesterday, 1 September 2022, the Romanian Government enacted a new government emergency ordinance regulating for the energy market. This is the last of a series of sixth normative acts issued in less than one year to address the negative effects of the soaring global energy prices.
The price caps applicable to final consumers remain the same although certain amendments have been performed. As a highlight:
· the 1 RON/kWh price cap previously applied to all non-household electricity consumers, applies now only for non-household consumers such as hospitals, entities activating in education or social services (100% of the consumption) as well as other public entities, small and medium enterprises and companies operating in the food industry (85% of consumption)
· as before, in order to incentivize the population to reduce its electricity consumption, no price caps are applicable for households with a consumption higher than 255 kWh/month
· the 0.37 RON/kWh fixed price for non-household gas consumers with a consumption below 50,000 kWh remains applicable; no price cap applicable for consumptions exceeding the above-mentioned threshold
· the prices applicable until 31 August 2023 (as opposed to 1 April 2023 as per the past legislation)
· the mechanism related to the compensation of suppliers is maintained although some amendments are performed including the introduction of a maximum settlement cap of RON 1,300 for megawatt of electricity
The former supplemental tax applicable to electricity producers is replaced with the so called “Solidarity Tax” or “Contribution to the Energy Transition Fund”. This new tax applies to electricity producers as well as electricity and gas traders, suppliers performing trading activities and aggregators.
The Solidarity Tax is equal to:
· the total delivered quantities multiplied by the difference between the net monthly price and RON 450 – in case of producers
· the total delivered quantities multiplied by the difference between the average monthly sale price and the average monthly acquisition price – in case of electricity and gas traders, suppliers performing trading activities and aggregators
A specific formula is introduced for the calculation of the Solidarity Tax applicable for export transactions.
The Solidarity Tax does not apply to production facilities put in function after 1 September 2022. It is however to be noted that the previous supplemental tax was not applicable for projects put into function after July 2022 – it remains to be assessed to which extent this provision can be challenged in relation to production facilities put into function within this timeframe.
The obligations to offer natural gas on the centralised market are now applicable until 31 December 2024 (as opposed to 31 December 2022).
Novelty: Successive sales of electricity or natural gas with the purpose of artificially increasing energy prices, is sanctioned with a fine of 5% of the turnover.
Novelty: Between 1 September 2022 and 31 October 2023, onshore/offshore gas producers that undertake activities related to the production of electricity from natural gas can apply a transfer price of maximum RON 100/MWh.
Novelty: PPAs need to be notified with the National Energy Regulator within two days since their execution.
The extent under which this new set of rules complies with the applicable EU legislation remains to be fully assessed.
Anca Mihăilescu, Mihăilescu Legal