Virtual Legal


 RES Directive (2009/28/EC), support schemes and retroactive changes 
Does EU law prohibit Member States from introducing retroactive changes to their existing support systems?

The Renewable Energy Directive, Directive 2009/28/EC, itself does not prescribe in detail how the Member States shall support renewable energy, neither does it impose any specific support system or any fixed level of support. However, the Directive does oblige the Member States to reach their binding national target.[...]

Overview of infringement proceedings against Member States with regards to Directive 2009/28/EC

This document aims to give an overview over the infringement proceedings pending against Member States which have not fulfilled their obligation to transpose Directive 2009/28/EC (“the Directive”) into their national legal systems.

The Directive contains several provisions which leave considerable discretion to the Member States. For example, Article 3 of the Directive says that they can use support schemes for renewable energy in order to reach their binding national target of a certain percentage of renewable energy in final consumption by 2020. It does not prescribe what the support scheme shall look like, however. Other provisions, such as Article 15 of the Directive, on guarantees of origin, though are rather detailed and leave less leeway to the Member States. Generally, the more concrete the provisions of the Directive are, the clearer is the obligation on the Member States to transpose it, and thus the easier a breach of the obligation to transpose the Directive can be established. Overall, they had to be implemented until 5 December 2010.

The European Commission (“the Commission”) is responsible for ensuring that EU law is correctly applied. If a Member State fails to comply with EU law, the Commission, based on the rules in Article 258 of the Treaty on Functioning of the EU (“the Treaty”), can take initiative to bring the infringement to an end. A first step in the procedure is a Letter of Formal Notice. The second step is a Reasoned Opinion sent by the Commission. Thereafter, the Commission can take the Member State in question to court. Ultimately, and after a second round of proceedings before the European Court of Justice (“ECJ”), fines can be imposed if the Member States do not end the infringements before. However, this competence is discretionary. Thus the Commission can generally decide whether it wants to act upon a breach or not.[1]

This document contains information on the proceedings started by the Commission. It contains information on the starting date of the proceeding and on particular steps taken by the Commission. In some cases, more specific information on non-compliance with the EU law is available than in others. In this regard, it needs to be stressed that the Commission itself does not provide further details on on-going or finished infringement proceeding with regards to confidentiality of information. As the data in the following table is based on Commission sources, it may thus be more or less detailed, depending on availability

[1] For an overview over how the infringement procedure works, please consult the website of the European Commission: A summary has also been provided by the Legal Help Desk in the course of the Keep on Track! project, there related to failure by the Member States to reach their target. Please see: