Feed-In Tariffs for Wind Energy Set out by the French Government May Constitute Unlawful State Aid

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In February 2009, a claim was filed before the highest French administrative court (Conseil d’Etat) by the association “Vent de Colère” seeking the annulment of a ministerial order dated 17 November 2008 enacting the feed-in tariffs applicable to onshore and offshore wind farms (the “2008 Order”). Vent de Colère notably claimed that the set feed-in tariffs constitute State aid as defined by EU law, which is unlawful because such a support scheme has not been duly notified to, and approved by the European Commission.

On 15 May 2012, the Conseil d’Etat decided to stay the proceedings and refer the matter for a preliminary ruling to the Court of Justice of the European Union (the “CJEU”).

On 19 December 2013, following the Advocate General Jääskinen’s opinion, the CJEU ruled that the financing mechanism put in place by the 2008 Order falls within the concept of aid granted by the State or through State resources.

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