The Gas and Electricity Markets Authority (GEMA) v R (SSE Generation Limited & Ors) (SSE)

The Gas and Electricity Markets Authority (GEMA) v R (SSE Generation Limited & Ors) (SSE)

GEMA acted lawfully in adopting a non-compliant interim methodology as a stop-gap measure, given the procedural constraints and the need to avoid a worse outcome, provided the ultimate objective was full compliance. The definition of 'congestion management' in the 2019 Recast Regulation is not limited to interconnectors/international trade but applies to congestion across the entire transmission system; however, the EU retained law definition in force in Great Britain is narrower due to a legislative drafting error, which the court declined to correct judicially.

Parties
Claimant / Respondent: SSE Generation Limited & Others (SSE); Interested Party: The Competition and Markets Authority (CMA); Interested Party / Appellant: The Gas and Electricity Markets Authority (GEMA); Interested Party: National Grid Electricity System Operator Limited; Interested Party: Centrica PLC / British Gas Trading Limited
Jurisdiction
England and Wales
Judgment Date
08 November 2022
Procedural Posture
Judicial Review / Statutory Appeal / Court of Appeal Judgment on Appeal
Outcome
Appeal by GEMA allowed; cross-appeal by SSE allowed.
Legal Topics
Statutory Interpretation, Regulatory Compliance, Electricity Transmission Charges, EU Retained Law, Judicial Review, Public Law Duties
Administrative Law Energy Law EU Law Regulatory Law Statutory Interpretation Regulatory Compliance Electricity Transmission Charges EU Retained Law +2 more

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Parties

SSE Generation Limited & Others (SSE)

Claimant / Respondent

The Competition and Markets Authority (CMA)

Interested Party

The Gas and Electricity Markets Authority (GEMA)

Interested Party / Appellant

National Grid Electricity System Operator Limited

Interested Party

Centrica PLC / British Gas Trading Limited

Interested Party

Procedural Posture

Judicial Review / Statutory Appeal / Court of Appeal Judgment on Appeal

Legal Issues

  1. 1 Whether GEMA acted lawfully in adopting a non-compliant interim methodology for transmission charges as a stop-gap measure pending full compliance with the law.
  2. 2 Whether the definition of 'congestion management' for the purposes of transmission charging is limited to interconnectors/international trade or applies to the entire transmission system.

Ratio Decidendi

GEMA acted lawfully in adopting a non-compliant interim methodology as a stop-gap measure, given the procedural constraints and the need to avoid a worse outcome, provided the ultimate objective was full compliance. The definition of 'congestion management' in the 2019 Recast Regulation is not limited to interconnectors/international trade but applies to congestion across the entire transmission system; however, the EU retained law definition in force in Great Britain is narrower due to a legislative drafting error, which the court declined to correct judicially.

Court Disposition

Appeal by GEMA allowed; cross-appeal by SSE allowed.

Orders

  • The appeal by GEMA on the lawfulness of the interim methodology is allowed; GEMA's staged approach was lawful.
  • The cross-appeal by SSE on the definition of 'congestion management' is allowed; the correct definition is not limited to interconnectors under the 2019 Recast Regulation.