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Breyer Case Review

AUTHOR(S):
PRACTICE AREA GROUP: Projects, Energy and Infrastructure
DATE: 25.08.2014

The recent decision of the Hon. Mr Justice Coulson in the case of Breyer Group plc & Others v Department of Energy and Climate Change (2014) EWHC 2257 (QB), will no doubt make interesting reading for policy makers and regulators on the island of Ireland and across the EU.

Electricity markets in the EU are, in a state of flux, due to fundamental changes in market dynamics caused by the increasing penetration of renewable generating technologies, as well as changes to market rules that are necessary in order to implement the EU’s Target Model for the energy sector.  On the island of Ireland, the drive to establish full compliance with the Target Model has led to the commencement of a process under which the jurisdictional energy regulators are re-designing the SEM wholesale electricity market in time to meet a 31 December 2016 deadline.  While the re-design is occurring primarily in order to facilitate the “coupling” of electricity prices between the SEM and its neighbouring regions (and hence the “Integrated SEM” – or “I-SEM” – working title), it is likely to have significant knock-on effects across the web of contracts that supports trading and payment in the Irish electricity sector, including contracts that are the subject of public service obligations, including renewable energy support schemes.

In the GB context, the decision in the Breyer case illustrates the important role the European Convention on Human Rights (“ECHR”) can play in protecting the rights of investors and,  in some cases, supply chain businesses operating more generally in the supported sector. Whilst this decision may only have persuasive authority in an Irish context, the ECHR has been given effect in Ireland by the European Convention on Human Rights Act 2003, and compliments constitutional and other protections that may be available as a matter of Irish law generally. Due to the wide-ranging effect of the implementation of I-SEM, the potential impact of the Breyer case should not be overlooked.

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