OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 22 October 2026 (1)
Case C‑533/24
Vermilion Energy Ireland Ltd,
Vermilion Exploration and Production Ireland Ltd,
Vermilion Energy Corrib Ireland Ltd
v
The Minister for the Environment, Climate and Communications,
Ireland,
The Attorney General
(Request for a preliminary ruling from the High Court (Ireland))
( Reference for a preliminary ruling – Internal market for electricity – Regulation (EU) 2022/1854 – Emergency intervention to address high energy prices – Validity of Chapter III adopted on the basis of Article 122(1) TFEU – Articles 14 and 15 – Temporary solidarity contribution – National legislation establishing a temporary solidarity contribution pursuant to the provisions of Chapter III – Articles 16 and 17 of the Charter of Fundamental Rights of the European Union – Principles of legal certainty, non-retroactivity and proportionality )
I. Introduction
1. Regulation (EU) 2022/1854 (2) established an emergency intervention which was intended to address high energy prices resulting, in particular, from the war in Ukraine, by means of exceptional, targeted and time limited measures. Adopted on the basis of Article 122(1) TFEU, that regulation provided, in Article 14 thereof, for the introduction of a temporary solidarity contribution applicable to certain undertakings in the energy sector, unless Member States had enacted ‘equivalent national measures’.
2. In that context, the High Court (Ireland), hearing a dispute between companies engaged in gas development and production in Ireland and the national authorities concerning the temporary solidarity contribution established by national legislation implementing the provisions of Chapter III of Regulation 2022/1854, seeks guidance, in essence, on the validity of that chapter and on the interpretation of the principles of legal certainty, non-retroactivity and proportionality, Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and recitals 54 and 55 of that regulation.
3. This reference for a preliminary ruling, which follows on from a number of recent cases brought before the Court, (3) including Acea Produzione and Others (Case C‑153/25) and Varo Energy Belgium and Others (Case C‑358/24), in which my Opinions are also being delivered today, (4) offers the Court an opportunity to clarify further its case-law concerning the interpretation of Regulation 2022/1854, which was designed as an exceptional, temporary instrument in the context of an unprecedented energy crisis, and, in particular, to rule, first, on the validity of Chapter III thereof in the light of the legal basis on which it was adopted, namely Article 122(1) TFEU, the principles of legal certainty, non-retroactivity and proportionality and Articles 16 and 17 of the Charter and, second, on the interpretation of those principles and articles for the purposes of assessing whether the national legislation at issue is compatible with EU law.
II. Legal framework
A. European Union law
4. According to recitals 6, 7, 9, 13, 14, 50, 51, 54, 55, 57, 64 and 65 of Regulation 2022/1854:
‘(6) A rapid and coordinated response is therefore needed at Union level. The establishment of an emergency intervention would allow for a temporary mitigation of the risk that electricity prices and the cost of electricity for final customers reach even less sustainable levels and that Member States adopt uncoordinated national measures, which could endanger security of supply at Union level and put an additional burden on the Union’s industry and consumers. In a spirit of solidarity between Member States, a coordinated effort by Member States during the winter season 2022-23 is required to mitigate the impact of high energy prices and ensure that the current crisis does not lead to lasting harm for consumers and the economy, while preserving the sustainability of public finances.
(7) The current disruptions of gas supplies, reduced availability of certain power generating plants, and the resulting impacts on gas and electricity prices, constitute a severe difficulty in the supply of gas and electricity energy products within the meaning of Article 122(1) [TFEU] …
…
(9) A united and well-coordinated Union-wide response is needed to tackle the stark increase of electricity prices and their impact on households and industry. Uncoordinated national measures could affect the functioning of the internal energy market, endangering security of supply and leading to further price increases in the Member States most affected by the crisis. Safeguarding the integrity of the internal electricity market is therefore crucial to preserve and enhance the necessary solidarity between Member States.
…
(13) It appears appropriate in the current situation to take action at Union level by introducing a solidarity contribution for Union companies and permanent establishments with activities in the crude petroleum, natural gas, coal and refinery sectors in order to mitigate the direct economic effects of the soaring energy prices for public authorities’ budgets, final customers and companies across the Union. Such solidarity contribution should be exceptional and strictly temporary.
(14) The solidarity contribution is an appropriate means to tackle surplus profits, in the event of unforeseen circumstances. Those profits do not correspond to any regular profit that Union companies or permanent establishments with activities in the crude petroleum, natural gas, coal and refinery sectors would or could have expected to obtain under normal circumstances, had the unpredictable events in the energy markets not have taken place. …
…
(50) Without substantially changing their cost structure and increasing their investments, Union companies and permanent establishments generating at least 75% of turnover with activities in the crude petroleum, natural gas, coal and refinery sectors, have seen their profits spike due to the sudden and unpredictable circumstances …
(51) The temporary solidarity contribution should act as a redistributing measure to ensure that the companies concerned which have earned surplus profits as a result of the unexpected circumstances, contribute in proportion to the improvement of the energy crisis in the internal market.
…
(54) This approach would ensure that part of the profit margin, which is not due to the unpredictable developments in the energy markets following Russia’s war of aggression against Ukraine could be used by Union companies and permanent establishments concerned for future investment or for ensuring their financial stability during the ongoing energy crisis including for the energy intense industry. This approach to determining the calculation base would ensure that the solidarity contribution in different Member States is proportionate. At the same time, the setting of a minimum rate should ensure that the solidarity contribution is both fair and proportionate. Member States should remain free to apply a rate higher than 33% for their solidarity contribution. This should enable such Member States to set the preferred rate they deem acceptable and appropriate under their national legal systems.
(55) Member States should take the necessary measures to ensure the full application of the solidarity contribution provided for in this Regulation and should arrange for the necessary adjustments in national law, in particular in order to ensure the timely collection of the solidarity contribution, including on the basis of net revenues against which the solidarity contribution can be offset, to cater for the deductibility or non-deductibility of the solidarity contribution, or to cater for the treatment of losses in previous fiscal years …
(57) The use of the proceeds for those purposes reflects the solidarity contribution’s exceptional and temporary nature as a measure that intends to reduce and mitigate the harmful effects of the energy crisis for households and companies across the Union with the objective of protecting the internal market and preventing the risk of further fragmentation … To maximise its impact, the use of the proceeds of the solidarity contribution should be done in a coordinated way and/or through Union financing instruments in a spirit of solidarity.
…
(64) … The application of the solidarity contribution to the full fiscal year should allow the use of surplus profits for the relevant period, in the public interest of mitigating the consequences of the energy crisis, while leaving an appropriate measure of profits to the companies concerned.
(65) The solidarity contribution should apply only to the fiscal year 2022 and/or 2023. …’
5. Article 1 of that regulation, entitled ‘Subject matter and scope’, provided:
‘This Regulation establishes an emergency intervention to mitigate the effects of high energy prices through exceptional, targeted and time limited measures. Those measures aim to reduce electricity consumption, … to establish rules for a mandatory temporary solidarity contribution from Union companies and permanent establishments with activities in the crude petroleum, natural gas, coal and refinery sectors to contribute to the affordability of energy for households and companies.’
6. Article 2 of that regulation, entitled ‘Definitions’, provided, in paragraphs 17 to 19 and 21 thereof:
‘For the purposes of this Regulation, … the following definitions also apply:
…
(17) “Union companies and permanent establishments with activities in the crude petroleum, natural gas, coal and refinery sectors” means Union companies or permanent establishments generating at least 75% of their turnover from economic activities in the field of the extraction, mining, refining of petroleum or manufacture of coke oven products, as referred to in Regulation (EC) No 1893/2006 [(5)]…;
(18) “surplus profits” means taxable profits, as determined under national tax rules in the fiscal year 2022 and/or the fiscal year 2023 and for their full duration, accrued from activities carried out at the level of Union companies and permanent establishments with activities in the crude petroleum, natural gas, coal and refinery sectors which are above a 20% increase of the average of the taxable profits in the four fiscal years starting on or after 1 January 2018;
(19) “solidarity contribution” means a temporary measure intended to address surplus profits of Union companies and permanent establishments with activities in the crude petroleum, natural gas, coal and refinery sectors to mitigate exceptional price developments in the energy markets for Member States, consumers and companies;
…
(21) “enacted equivalent national measure” means a legislative, regulatory or administrative measure adopted and published by a Member State by 31 December 2022 which contributes to the affordability of energy.’
7. Chapter III of Regulation 2022/1854, entitled ‘Measure concerning the crude petroleum, natural gas, coal and refinery sectors’, comprised Articles 14 to 18. In accordance with Article 14 thereof, entitled ‘Support to final energy customers through a temporary solidarity contribution’:
‘1. Surplus profits generated by Union companies and permanent establishments with activities in the crude petroleum, natural gas, coal and refinery sectors shall be subject to a mandatory temporary solidarity contribution, unless Member States have enacted equivalent national measures.
2. Member States shall ensure that enacted equivalent national measures share similar objectives and are subject to similar rules as the temporary solidarity contribution under this Regulation and generate comparable or higher proceeds to the estimated proceeds from the solidarity contribution.
3. Member States shall adopt and publish measures implementing the mandatory temporary solidarity contribution referred to in paragraph 1 by 31 December 2022.’
8. Article 15 of that regulation, entitled ‘Basis for calculating the temporary solidarity contribution’, provided:
‘The temporary solidarity contribution for Union companies and permanent establishments with activities in the crude petroleum, natural gas, coal and refinery sectors, including those that are part of a consolidated group merely for tax purposes, shall be calculated on the taxable profits, as determined under national tax rules, in the fiscal year 2022 and/or the fiscal year 2023 and for their full duration, which are above a 20% increase of the average of the taxable profits, as determined under national tax rules, in the four fiscal years starting on or after 1 January 2018. If the average of the taxable profits in those four fiscal years is negative, the average taxable profits shall be zero for the purpose of calculating the temporary solidarity contribution.’
9. Article 16 of that regulation, entitled ‘Rate for calculating the temporary solidarity contribution’, was worded as follows:
‘1. The rate applicable for calculating the temporary solidarity contribution shall be at least 33% of the base referred to in Article 15.
2. The temporary solidarity contribution shall apply in addition to the regular taxes and levies applicable according to the national law of a Member State.’
10. Article 17 of that regulation, entitled ‘Use of proceeds from the temporary solidarity contribution’, provided:
‘1. Member States shall use the proceeds from the temporary solidarity contribution with sufficiently timely impact for any of the following purposes:
(a) financial support measures for final energy customers, and in particular vulnerable households, to mitigate the effects of high energy prices, in a targeted manner;
…
2. The measures referred to in paragraph 1 shall be clearly defined, transparent, proportionate, non-discriminatory and verifiable.’
11. According to Article 18 of Regulation 2022/1854, entitled ‘Temporary nature of the solidarity contribution’:
‘The solidarity contribution applied by Member States in accordance with this Regulation shall be of a temporary nature. It shall only apply to surplus profits generated in the fiscal years referred to in Article 15.’
12. Article 22 of that regulation, entitled ‘Entry into force and application’, was worded as follows, in paragraph 2 thereof:
‘Without prejudice to the obligation to ensure the distribution of surplus revenues in accordance with Article 10, and to use the proceeds from the temporary solidarity contribution in accordance with Article 17, and without prejudice to the reporting obligation referred to in Article 20(2), this Regulation shall apply until 31 December 2023 …’
B. Irish law
13. The Energy (Windfall Gains in the Energy Sector) (Temporary Solidarity Contribution) Act 2023 of 2 August 2023, (6) applicable to the main proceedings (‘the 2023 Act’), implemented, in the Irish legal system, the temporary solidarity contribution provided for in Regulation 2022/1854.
14. Section 2(1) of that law defined the ‘chargeable period’ as the 12-month period ‘commencing on 1 January in each of the years 2022 and 2023’.
15. Pursuant to Section 4 of that act, the rate of the temporary solidarity contribution was set at 75% of the taxable profits in excess of 120% of the average taxable profits in respect of the reference years.
III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
16. The applicants in the main proceedings (7) are private law companies engaged in gas development and production in Ireland. Those companies operate the Corrib gas field, located off the west coast of Ireland, which is currently the only operating gas field in that Member State and is said to have covered approximately 25% of its gas requirements for the year 2022.
17. By the 2023 Act, Ireland implemented the provisions of Chapter III of Regulation 2022/1854 by introducing a temporary solidarity contribution on profits in the energy sector in respect of the fiscal years 2022 and 2023. That contribution amounted to 75% of the fraction of the profits exceeding 120% of the average taxable profits realised during the 2018–2021 reference period.
18. In support of their action before the High Court, the referring court, the applicants in the main proceedings argue in particular that Article 122(1) TFEU does not constitute a valid legal basis for the adoption of Articles 14 to 18 of Regulation 2022/1854, which comprise Chapter III thereof. They also claim that those provisions infringe the general principles of legal certainty, non-retroactivity and proportionality, as well as the freedom to conduct a business and the right to property guaranteed by Articles 16 and 17 of the Charter. They therefore seek a declaration that that chapter is invalid and, consequently, that the 2023 Act which implements it is also invalid.
19. Moreover, in the event that the Court does not find that that chapter is invalid, the applicants in the main proceedings argue that it is nevertheless for the referring court to find that the 2023 Act infringes, in any event, the general principles of legal certainty, non-retroactivity and proportionality, as well as Articles 16 and 17 of the Charter.
20. By contrast, the defendants in the main proceedings (8) contend that Articles 14 to 18 of Regulation 2022/1854, which comprise Chapter III thereof, and the 2023 Act, which implements it, are compatible with EU law.
21. In those circumstances, the referring court is uncertain as to the validity of Chapter III of that regulation, in particular as to whether its adoption could be validly based on Article 122(1) TFEU and whether the provisions of that chapter are consistent with the general principles of legal certainty, non-retroactivity and proportionality, as well as with Articles 16 and 17 of the Charter. That court also raises the question whether the temporary solidarity contribution established by the 2023 Act is consistent with those principles and articles.
22. In those circumstances, the High Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does Article 122 TFEU afford a valid legal basis for Chapter III of [Regulation 2022/1854]? If not, is Chapter III invalid by virtue of the regulation having been[:]
(a) adopted on an invalid legal basis and/or
(b) not in compliance with the requirements of Article 122 TFEU and/or
(c) in contravention of the principle of conferral of competence provisions of the TEU and/or
(d) in contravention of the requirement for unanimity of voting within the EU Council for the adoption of measures concerning direct taxation and/or fiscal measures?
(2) Does Chapter III of [Regulation 2022/1854], and in particular Article 14 and Article 15 thereof, in providing that the temporary solidarity contribution thereunder applies to fiscal years 2022 and/or 2023, fail to comport with the general principles of legal certainty and/or non-retroactivity and/or the principle of proportionality, such that Chapter III is invalid and/or in particular Articles 14 and/or 15 thereof?
(3) Is Chapter III of [Regulation 2022/1854], and in particular Articles 14 and/or 15 thereof, in the introduction of the temporary solidarity contribution, invalid by reason of interfering with the plaintiffs’ rights guaranteed under Articles 16 and/or 17 of the [Charter]?
(4) Where a national court is asked to decide whether the [2023 Act] is incompatible with the EU law general principles of legal certainty and/or non-retroactivity because it imposes a temporary solidarity contribution for the years 2022 and 2023 by reference to the definition of “chargeable period” (defined in Section 2 of the [2023 Act] as “the 12 month period commencing on 1 January in each of the years 2022 and 2023”), what factors are relevant to assessing the validity of the [2023 Act] with reference to the above principles of EU law, and what relevance (if any) do the following factors have (noting that the facts remain to be determined by the referring court):
(a) The fact that [Regulation 2022/1854] was published on 7 October 2022, and came into effect next day,
(b) the fact that at the time [Regulation 2022/1854] came into effect[,] the year 2022 had not yet ended and 2023 had not begun,
(c) the fact that some (but not all) of the operations which generated profits for the plaintiffs in 2022 had been completed when [Regulation 2022/1854] came into effect,
(d) the fact that [Regulation 2022/1854] requires Member States to impose a temporary solidarity contribution or equivalent measures in relation to the years 2022 and/or 2023,
(e) the fact that the [2023 Act] was signed into law on 17 July 2023 and applied from 2 August 2023,
(f) the fact that the [2023 Act] imposes a civil liability only,
(g) the fact that Ireland has clear obligations under [Regulation 2022/1854],
(h) the justification advanced by Ireland for its definition of the “chargeable period”,
(i) the fact that a related company to the plaintiffs represented to Ireland’s national competition law enforcement authority that it viewed increasing its working interest in the Corrib gas field to be an “attractive investment” after the adoption of [Regulation 2022/1854] and after the announcement of the Government of Ireland measures to implement the temporary solidarity contribution, and/or
(j) any other factor, and if so what factor?
(5) Where the plaintiffs contend that the obligation to pay the temporary solidarity contribution breached their rights under Articles 16 and 17 of the [Charter] (or either of them) and/or the principle of proportionality including as set out in recitals 54 and/or 55 of [Regulation 2022/1854], in particular because of:
(1) the imposition of a rate of 75% under Section 4(2) of the [2023 Act], and/or
(2) the manner in which the [2023 Act] legislated for the treatment of losses in previous fiscal years,
what factors are relevant to a national court deciding on whether the [2023 Act] is compatible with the above provisions of EU law, what relevance (if any) should be given to the following factors (noting that the facts remain to be determined by the referring court):
(a) the fact that energy prices have risen considerably in Ireland and other Member States,
(b) the contention (made by the defendants but disputed by the plaintiffs) that this has caused hardship to consumers and businesses in Ireland, which the defendants have addressed at a cost of c. €4.5 billion in assisting consumers and businesses,
(c) the contention (made by the defendants but disputed by the plaintiffs) that the plaintiffs have made significant profits in 2022 and 2023 due to a general increase in the price of energy, rather than due to additional investment or improved efficiency and/or development/implementation of new product features for which customers would pay an enhanced price,
(d) the fact that profits have exceeded 120% of the average profits in the previous four years,
(e) the fact that [Regulation 2022/1584] requires Member States to impose a temporary solidarity contribution or equivalent measures on such profits,
(f) the fact that where Member States impose a temporary solidarity contribution, [Regulation 2022/1854] fixes a minimum rate of 33% but no maximum rate,
(g) the fact that Ireland set a rate of 75% (applicable to that proportion of the profits which exceed 120% of the average profits in the previous four years),
(h) the fact that the plaintiffs have paid approximately €99 million by way of temporary solidarity contribution in respect of 2022,
(i) the fact that the plaintiffs expect to pay approximately €40 million by way of temporary solidarity contribution in respect of 2023,
(j) the fact that the returns from the temporary solidarity contribution are applied to the costs of the measures adopted by the defendants to assist consumers and businesses with the increased energy prices,
(k) the fact that it was considered appropriate by the Union legislature and/or the Irish legislature that companies enjoying supra-normal profits should make a reasonable contribution to the costs incurred in supporting consumers and businesses,
(l) the fact that the plaintiffs assert that they did not expect to have a tax liability under Irish corporation tax in respect of 2022 or 2023 due to accumulated losses in previous tax years (noting that, as with all factual matters and contentions which have not been expressly stated to be agreed, the national court will determine whether this assertion and its reasonableness are proven),
(m) the fact that Article 16([2]) of [Regulation 2022/1854] provides that “the temporary solidarity contribution shall apply in addition to the regular taxes and levies applicable according to the national law of a Member State”,
(n) the fact that the [2023 Act] does not permit losses in years prior to 2018 to be taken into account in determining the profits which are subject to the temporary solidarity contribution,
(o) the fact that a related company to the plaintiffs represented to Ireland’s national competition law enforcement authority that it viewed increasing its working interest in the Corrib gas field to be an “attractive investment” after the adoption of [Regulation 2022/1854] and after the announcement of the Government of Ireland measures to implement the temporary solidarity contribution, and/or
(p) any other factor, and if so what other factor?’
23. Written observations were submitted to the Court by the applicants in the main proceedings, the defendants in the main proceedings, the Belgian and Italian Governments, the Council of the European Union and the European Commission. Those parties, and the German Government, also presented oral argument at the hearing, held jointly with that in Acea Produzione and Others (C‑153/25) and Varo Energy Belgium and Others (C‑358/24) on 9 June 2026.
IV. Analysis
A. The first question referred for a preliminary ruling
1. Admissibility
24. Before examining the first question referred for a preliminary ruling, it is necessary to rule on the plea of inadmissibility raised by the Italian Government, which maintains, in essence, that that question is inadmissible on the ground that its examination is irrelevant to the resolution of the dispute in the main proceedings, because the possible invalidity of Chapter III of Regulation 2022/1854 has no bearing on those proceedings, since the Member States remain, in any event, competent, under their national law, to establish a contribution such as that provided for by the 2023 Act.
25. In that regard, I would point out that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Thus, where the questions referred concern the interpretation or the validity of a rule of EU law, the Court is, in principle, bound to give a ruling. It follows that questions relating to EU law enjoy a presumption of relevance and that the refusal of the Court to rule on a question referred for a preliminary ruling by a national court is possible only where it is quite obvious that the ruling sought on the interpretation or validity of a rule of EU law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual and legal material necessary to give a useful answer to the questions submitted to it. (9)
26. In the present case, the applicants in the main proceedings are specifically challenging the validity of Chapter III of Regulation 2022/1854, which establishes the temporary solidarity contribution and on the basis of which the 2023 Act was adopted in order to implement, in the Irish legal system, the resulting obligations. The question of the validity of that chapter, as raised by the referring court, cannot therefore be considered clearly to bear no relation to the purpose of the dispute in the main proceedings. On the contrary, since the very purpose of that law is to implement the provisions of that chapter, the assessment of its validity has a direct bearing on the dispute before the referring court. (10) Moreover, the fact that Ireland has its own powers of taxation enabling it to adopt, under its national law, measures such as the contribution in question is therefore irrelevant.
27. In those circumstances, it must be concluded that the question referred concerns the validity of provisions of EU law and is not hypothetical, and that its examination is capable of providing the referring court with the information necessary to give judgment. Accordingly, I am of the view that the first question referred is admissible.
2. Substance
28. The first question referred seeks, in essence, to determine whether Article 122(1) TFEU constitutes a valid legal basis for the adoption of the provisions of Chapter III of Regulation 2022/1854. More specifically, the referring court enquires whether those provisions may be vitiated by invalidity on the ground of (i) the choice of an inappropriate legal basis; (ii) their incompatibility with the requirements arising from Article 122 TFEU; (iii) a breach of the principle of conferral of powers; or (iv) a failure to comply with the requirement of a unanimous vote within the Council for the adoption of measures concerning direct taxation and/or fiscal measures.
(a) The choice of legal basis and compliance with the requirements of Article 122(1) TFEU
29. I note at the outset that it is settled case-law that the choice of legal basis for an EU measure must rest on objective factors that are amenable to judicial review, including the aim and content of that measure. (11) Moreover, where the Treaties contain a more specific provision that is capable of constituting the legal basis for the EU measure, the measure must be founded on that provision. Finally, where examination of such a measure reveals that it pursues several purposes or that it comprises several components and if one of those purposes or components is identifiable as the main or predominant purpose or component, whereas the others are merely incidental or are only extremely limited in scope, the legal basis for adopting that measure must be determined in accordance with that main purpose or component. (12)
30. Under Article 122(1) TFEU, ‘without prejudice to any other procedures provided for in the Treaties, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy’.
31. It is clear from the wording of that provision that recourse to it as the legal basis for an act of EU law is subject to the satisfaction of several conditions. It is in the light of all those conditions, which will be examined below, that it is necessary to determine, in the present case, whether Article 122(1) TFEU could constitute an appropriate legal basis for the adoption of Regulation 2022/1854 as a whole and Chapter III thereof in particular, having regard, inter alia, to its purpose and content.
32. In the first place, it follows from the wording and the scheme of Article 122(1) TFEU that that provision is intended to apply to specific economic situations which are emergencies or exceptional. Measures adopted on the basis of that provision, which is in Chapter 1 of Title VIII of the FEU Treaty, must be intended to remedy a situation of an economic nature. Moreover, although that provision expressly refers to ‘severe difficulties’ in the supply of certain products, notably in the area of energy, the use of the words ‘in particular’ indicates that this is illustrative and not the only emergency situation capable of falling within its scope. (13)
33. In the present case, that condition appears to me, on the face of it, to be satisfied. On the one hand, as is clear from Article 1 of Regulation 2022/1854, read in the light, in particular, of recital 6 thereof, the purpose of that regulation is to ‘establish … an emergency intervention to mitigate the effects of high energy prices through exceptional, targeted and time limited measures’, including by means of the temporary solidarity contribution provided for in Article 14 of that regulation. (14) That regulation thus aims to address a situation which, at the time of its adoption, was both an emergency and exceptional in the light of the existence of ‘severe difficulties … in the supply of certain products, notably in the area of energy’. Accordingly, this is precisely the situation expressly envisaged in Article 122(1) TFEU. By their very nature, supply difficulties cannot be limited to the direct supply of Member States, but also include the supply of energy products to consumers, businesses and private individuals. Indeed, if supply capacity were to concern only Member States, whilst consumers were unable to gain widespread access to those products due to excessively high prices resulting from exceptional circumstances, that provision would be devoid of any substantive content.
34. On the other hand, the aforementioned objectives highlight the essentially economic nature of Regulation 2022/1854, namely to ensure security of supply of electricity, to mitigate the increase in energy prices adversely affecting the economy and to contribute to the affordability of energy for the Member States as a whole. (15) In that context, the solidarity contribution, provided for in Chapter III of that regulation, also pursues an economic objective, namely to ‘mitigate the direct economic effects of the soaring energy prices for public authorities’ budgets, final customers and companies across the Union’. (16)
35. In the second place, even though the wording of Article 122(1) TFEU does not expressly lay down this condition, measures adopted on the basis of that provision must be of a temporary nature. That requirement derives from the very purpose of the provision, which enables the Council to adopt the measures necessary to deal with an emergency situation. Such measures are therefore intended to apply not on a lasting basis, but only for the duration of the crisis situation which they are intended to remedy, at the very least until it has come to an end. Otherwise, that provision could encroach upon the substantive legal bases provided for by the Treaties and therefore be contrary to the very introductory wording of the provision, which makes its application subject to compliance with ‘any other procedures provided for in the Treaties’. Recourse to Article 122(1) TFEU cannot therefore either undermine or permit the circumvention of recourse to the other legal bases provided for by the Treaties for situations which arise in ‘normal circumstances’. (17)
36. In the present case, that condition is also satisfied. On the one hand, the measures established by Regulation 2022/1854 are, pursuant to Article 1 thereof, ‘time limited’, since Article 22(2) of that regulation provides that it was to apply until 31 December 2023. On the other hand, as regards the temporary solidarity contribution, its temporary nature is apparent from the very title of Article 14 of that regulation, which uses the adjective ‘temporary’. Article 18 of that regulation further states that it is ‘of a temporary nature’ and applies only to surplus profits generated during the fiscal years referred to in Article 15, namely those of 2022 and 2023.
37. In the third place, it is apparent from Article 122(1) TFEU that measures adopted on the basis of that provision must be ‘appropriate to the economic situation’. That requirement is an expression of the principle of proportionality, which requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued and do not go beyond what is necessary to achieve them. Accordingly, when there is a choice between several appropriate measures, recourse must be had to the least onerous. In that regard, I would point out that the Court accepts that the EU legislature must be allowed a broad discretion in areas, such as that in the present case, which involve, on its part, political, economic and social choices, and in which it is called upon to undertake complex assessments. In such a context, judicial review of compliance with the principle of proportionality is limited to determining whether the measure in question is manifestly inappropriate in the light of the objective pursued, since only if it is may the lawfulness of such a measure be affected. (18)
38. In the present case, with regard in particular to the temporary solidarity contribution, that contribution appears to me, on the one hand, to be appropriate for attaining the objective pursued by the EU legislature, which is to mitigate the effects of the energy crisis. Contrary to what the applicants in the main proceedings claim, that contribution is not intended solely to generate additional budgetary revenues for Member States, but seeks also to finance measures to mitigate the effects of that energy crisis, by requiring a contribution from undertakings in the sector which have, as a result of that crisis, made what are described as ‘surplus’ profits, that is to say, profits which would not have been made under ‘normal circumstances’. (19) I note, in that regard, that Article 17 of Regulation 2022/1854 provides that, while Member States have a wide margin of discretion as to the detailed rules for the implementation of that contribution, they must ‘use’ the proceeds for one of the purposes listed in that article, which are directly linked to the effects of the energy crisis.
39. On the other hand, it seems to me possible to regard the temporary solidarity contribution as necessary to attain the objective pursued – namely to mitigate the negative effects of the energy crisis on households and businesses throughout the EU whilst preserving the integrity and proper functioning of the internal energy market – in the light of the broad discretion enjoyed, in this case, by the EU legislature, as set out in point 37 of this Opinion. Moreover, the characteristics of that contribution, defined in Articles 15 and 16 of Regulation 2022/1854, suggest that it does not go beyond what is necessary to attain that objective. That contribution relates only to a part of the ‘surplus’ profits of the undertakings concerned, thereby ensuring that a part of the profit margin which does not result from market developments following the war may remain available to the companies and permanent establishments concerned, in order to enable them to make future investments or ensure their ongoing financial stability. (20)
40. In the fourth and last place, Article 122(1) TFEU provides that the Council must decide on the measures to be taken ‘in a spirit of solidarity between Member States’. That requirement constitutes a specific expression of the principle of solidarity, which is one of the fundamental principles of EU law, to which several provisions of the FEU Treaty refer and which underpins the entire legal system of the European Union. (21) It is clear from the Court’s case-law that that principle constitutes a criterion for reviewing the legality of measures adopted by the EU institutions and that it entails rights and obligations both for the European Union and for the Member States. Accordingly, the European Union is bound by an obligation of solidarity towards the Member States, while the Member States are bound by an obligation of solidarity between themselves and with regard to the common interest of the European Union and the policies pursued by it. Observance of that principle therefore requires an analysis of the interests involved, taking into account the particular interests both of the Member States and of the European Union as a whole. (22)
41. Those principles, established by the Court in the context of EU energy policy, (23) seem to me to be applicable to the requirement of solidarity laid down in Article 122(1) TFEU. (24) In the present case, several factors lead me to consider that the measures adopted under Chapter III of Regulation 2022/1854 indeed comply with that requirement. The ‘spirit of solidarity’ is referred to on several occasions in that regulation to justify the coordinated effort of all Member States to mitigate the effects of high energy prices and ensure that the current crisis does not lead to lasting harm for consumers (25) and the economy, while preventing a worsening of imbalances and further fragmentation in the internal market and preserving the sustainability of public finances. (26)
42. It follows that Regulation 2022/1854, and in particular Chapter III thereof, was clearly adopted in a spirit of solidarity between Member States.
43. In the light of the foregoing, I consider that Regulation 2022/1854 as a whole, and Chapter III thereof in particular, was validly adopted on the basis of Article 122(1) TFEU, in compliance with the conditions which that provision lays down for the adoption of measures on the basis of that provision.
(b) Compliance with the principle of conferral of powers and the requirement of a unanimous vote within the Council
44. The applicants in the main proceedings argue that the temporary solidarity contribution cannot, in any event, be validly adopted on the basis of Article 122(1) TFEU, on account of its fiscal nature. They submit, first, that such a measure constitutes a direct tax, with the result that its adoption by the EU legislature would constitute a breach of the principle of conferral of powers of the European Union, and, second, that, even if the European Union had the power to introduce such a tax, it could be based only on one of the specific legal bases provided for by the FEU Treaty in the field of taxation, which require a unanimous vote within the Council.
45. In that regard, since it has been established that Regulation 2022/1854 satisfies the conditions for the application of Article 122(1) TFEU, it does not seem to me relevant to examine whether that regulation or any of the measures which it provides for could also have been adopted on the basis of another legal basis subject to different voting rules. Article 122(1) TFEU constitutes a specific legal basis, the use of which cannot be excluded solely on the ground that other legal bases, which are more general in scope, may also be applicable. (27)
46. For the sake of completeness, I would note, however, that it appears to me difficult to dispute that the temporary solidarity contribution provided for by Regulation 2022/1854, which consists in levying a contribution on the ‘surplus’ profits of the undertakings concerned, is of a ‘fiscal nature’. Nevertheless, I see no reason to doubt that such a measure could be adopted on the basis of Article 122(1) TFEU.
47. First, that provision does not provide that fiscal measures are to be excluded from its scope. Neither the wording nor purpose of Article 122(1) TFEU justifies a general exclusion of such measures from its scope. Where the Treaties are intended to exclude fiscal measures from the scope of a legal basis, they expressly provide for this. (28)
48. Second, it is common ground that the EU legislature may adopt measures of a fiscal nature without acting in breach of the principle of conferral of powers, enshrined in particular in Article 5(1) TEU. The European Union has powers in the field of taxation and has already exercised them, in particular on the basis of Article 115 TFEU, (29) but also on the basis of point (a) of the first subparagraph of Article 192(2) and Article 194(3) TFEU. It follows that, although direct taxation falls primarily within the competence of the Member States, the European Union is nevertheless not deprived of all competence in that area, provided that it acts within the limits of a legal basis provided for by the Treaties.
49. Third, as regards whether a tax measure could be adopted only on the basis of one of the specific legal bases provided for by the FEU Treaty in the field of taxation and subject to the rule requiring a unanimous vote within the Council, I would note, at the outset, that the Court has held, in relation to the former Article 103 EEC, that that provision could allow derogation from the rules of the Treaty which, in normal circumstances, would have constituted the relevant legal bases. (30) That case-law may, in my view, be readily transposed to Article 122(1) TFEU, which enables the Council, in exceptional economic crises, to adopt the appropriate and temporary measures necessary to address such crises. In the present case, the main objective of Chapter III of Regulation 2022/1854 is not to harmonise or provide a framework for the Member States’ tax policy, but to help, in particular through the temporary solidarity contribution, to remedy the effects of the energy crisis. Therefore, and in accordance with the Court’s case-law cited in point 29 of this Opinion, it is in the light of that objective that the appropriate legal basis for the adoption of those measures must be determined. In that regard, the temporary solidarity contribution is markedly different from an ordinary tax measure intended, for example, to harmonise the rules on the taxation of profits on a permanent basis.
50. The fact that that contribution is of a fiscal nature cannot, therefore, be assessed in isolation, but must be examined in the broader context of the body of emergency intervention measures established by Regulation 2022/1854 to address a specific and temporary crisis. In any event, even if that contribution pursues, in addition to the objective of remedying the effects of the energy crisis, a specific fiscal objective, that objective is incidental to the objective pursued by that regulation. It follows from the case-law recalled in point 29 of this Opinion that where an EU act has a twofold purpose or a twofold component and one of these is identifiable as main or predominant, whereas the other is merely incidental, that act must be founded on a sole legal basis, that is, the one required by the main or predominant purpose or component.
51. Fourth, and in that connection, I would observe that the need to preserve the effectiveness of Article 122(1) TFEU also supports that analysis. Although that provision indeed provides that it applies ‘without prejudice to any other procedures provided for in the Treaties’, it cannot be inferred from this that that provision cannot be implemented where another legal basis would, in normal circumstances, allow the proposed measure to be adopted. Such an interpretation would effectively deprive Article 122(1) TFEU of a substantial part of its effectiveness. (31)
52. Fifth, with regard to voting requirements, I note that measures adopted on the basis of Article 122(1) TFEU are subject to qualified majority voting within the Council. In that regard, the Court has already held that it is not procedures that define the legal basis of a measure but the legal basis of a measure that determines the procedures to be followed in adopting that measure. (32) It follows that, even though the temporary solidarity contribution, considered in isolation, could be classified as a measure of a fiscal nature, that cannot call into question the conclusion that Article 122(1) TFEU constitutes an appropriate legal basis for Regulation 2022/1854, including the temporary solidarity contribution. The Court has already held that the question whether a purely incidental element would have been subject – considered in isolation – to a requirement of unanimity is irrelevant for the purpose of the assessment. (33) Moreover, Article 122(1) TFEU is specifically intended to allow the Council to act quickly when emergency situations so require, which is not consistent with a requirement for a unanimous vote.
53. In the light of those considerations, I propose that the Court find that, since Regulation 2022/1854 was validly adopted on the basis of Article 122(1) TFEU, it was also adopted within the limits of the powers conferred on the European Union and in accordance with the procedure laid down by that provision, which does not require unanimity.
54. In the light of the foregoing, I consider that the answer to the first question should be that Regulation 2022/1854, including Chapter III thereof, was validly adopted on the basis of Article 122(1) TFEU, in compliance with the conditions to which that provision makes the adoption of measures on that basis subject and, therefore, within the limits of the powers conferred on the European Union and in accordance with the procedure laid down by that provision.
B. The second question referred for a preliminary ruling
55. By its second question, the referring court asks, in essence, whether Chapter III of Regulation 2022/1854, and in particular Articles 14 and 15 thereof, is invalid on the ground that it infringes the general principles of legal certainty, non-retroactivity of EU measures and proportionality. (34)
56. In the first place, as regards the principle of non-retroactivity, it is clear from the Court’s settled case-law that that principle derives from the principle of legal certainty, which precludes a new legal rule from applying retroactively, namely to a situation established prior to its entry into force. (35) By contrast, a new legal rule applies immediately to the future effects of a situation which arose under the old law, as well as to new legal situations. It may be otherwise, subject to the principle of non-retroactivity, if the new rule is accompanied by special provisions which specifically lay down the conditions for its temporal application. (36) Moreover, although, as a general rule, the principle of legal certainty precludes an EU measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where an aim in the public interest so demands and the legitimate expectations of those concerned are duly respected. (37)
57. That having been stated, I note that, in accordance with Article 22(1) of Regulation 2022/1854, the latter entered into force on the day following its publication in the Official Journal of the European Union, namely on 8 October 2022.
58. More specifically, as regards any retroactive effect of Chapter III of that regulation, it is important to note that Article 18 thereof provides that the temporary solidarity contribution applies to surplus profits generated in the fiscal years referred to in Article 15 of that regulation, namely the fiscal years 2022 and/or 2023. (38)
59. In that regard, the fact that Chapter III entered into force before the end of the fiscal year 2022 seems to me such as to rule out any retroactive effect of the temporary solidarity contribution.
60. As I noted in point 56 of this Opinion, it is clear from the Court’s settled case-law that a new legal rule applies, in principle, immediately to the future effects of a situation which arose under the old law, as well as to new legal situations. In my view, that is the position in the present case. The imposition of a new levy on the profits of undertakings, which is adopted during a fiscal year, cannot be considered to govern a situation established prior to the date of its entry into force, since the tax regime applicable to those profits can be determined only at the end of that fiscal year, once they have been fully realised.
61. Moreover, I would recall that the temporary solidarity contribution established by Regulation 2022/1854 is an ad hoc and exceptional levy which, as such, is not intended to derogate from or amend existing legislation, with the result that it cannot affect an established situation on which the undertakings concerned could have relied.
62. In the light of the foregoing, I consider that the possibility for Member States to apply the temporary solidarity contribution to the fiscal year 2022 is not contrary to the principle of non-retroactivity of EU measures.
63. In the second place, as regards the principle of legal certainty, I would recall that that principle, the corollary of which is, moreover, the principle of the protection of legitimate expectations, requires that rules of law be clear and precise and that their application be foreseeable for those subject to the law, in particular where they may have adverse consequences. That principle requires, inter alia, that legislation must enable those concerned to know precisely the extent of the obligations imposed on them, and those persons must be able to ascertain unequivocally their rights and obligations and take steps accordingly. (39) However, those requirements cannot be interpreted as precluding the EU legislature from having recourse, in a provision that it adopts, to an abstract legal notion. That seems obvious, in so far as it is not possible to determine in advance, precisely and specifically, all situations that might arise. Similarly, the principle of legal certainty does not include an obligation to maintain the legal order unchanged over time, since the EU legislature remains free, within the limits of its discretion, to alter the existing legislative situation. (40)
64. As regards the principle of the protection of legitimate expectations, the right to rely on that principle presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union. However, a person may not plead breach of the principle unless he or she has been given precise assurances by the authorities. Similarly, an economic operator may not place legitimate reliance on there being no alteration of an existing situation by the EU legislature. (41)
65. For the reasons which I shall set out in the following points of this Opinion, I consider that no breach of those principles by Articles 14 and 15 of Regulation 2022/1854 can be established.
66. First, as regards the principle of legal certainty, I note that the aforementioned provisions define sufficiently clearly and precisely both the scope of the temporary solidarity contribution and the detailed rules for its implementation. (42) They therefore enable the producers concerned to determine sufficiently precisely the extent of their obligations in accordance with the case-law of the Court referred to in point 63 of this Opinion. Furthermore, because, according to that case-law, the principle of legal certainty does not require the maintenance of the legal order unchanged, the EU legislature cannot be found to be at fault for having adopted, in the context of an emergency, exceptional measures to address the energy crisis. (43)
67. It is clear, second, that, as far as the principle of the protection of legitimate expectations is concerned, none of the applicants in the main proceedings claims that the EU legislature had given precise, unconditional and consistent assurances, within the meaning of the case-law referred to in point 64 of this Opinion, as to the maintenance of the surplus profits made as a result of extraordinary circumstances during the energy crisis. (44) Moreover, no legitimate expectation could have arisen on the part of the undertakings concerned in relation to the realisation of such windfall profits, since the EU legislature intervened quickly to adopt emergency measures in response to the unforeseeable increase in gas prices. (45) Indeed, a prudent and circumspect economic operator should have expected such an intervention given the extraordinary nature of the situation and its significant impact not only on the energy market but also on the economy as a whole. Similarly, such an expectation cannot be based on the realisation of profits resulting from extraordinary circumstances which such an operator could not have expected at the time when its decision to invest was taken. (46)
68. It follows that neither the principle of legal certainty nor the principle of the protection of legitimate expectations can be interpreted as precluding any intervention by the public authorities to remedy a market failure, in particular where that intervention is an urgent response to an event which is exceptional and, by definition, unforeseeable. Moreover, the undertakings concerned cannot legitimately rely on the maintenance of an existing legal or economic situation, since the latter may be altered within the framework of the exercise of the discretion available to the competent EU authorities.
69. In the third and last place, as regards the principle of proportionality, which is also referred to in the context of the second question referred, for the same reasons as those set out in points 39 and 81 to 84 of this Opinion, I consider that Articles 14 and 15 of Regulation 2022/1854 do not infringe that principle.
70. In the light of the foregoing, I am of the view that the answer to the second question must be that Chapter III of Regulation 2022/1854, and in particular Articles 14 and 15 thereof, does not infringe the general principles of legal certainty, non-retroactivity of EU measures and proportionality.
C. The third question referred for a preliminary ruling
71. By its third question, the referring court asks, in essence, whether Chapter III of Regulation 2022/1854, and in particular Articles 14 and 15 thereof, is invalid on the ground that it infringes Articles 16 and 17 of the Charter.
72. It should be noted, as a preliminary point, that the question of the validity, in the light of Articles 16 and 17 of the Charter, of the emergency measures established by Regulation 2022/1854 has already been central in the case of 2Valorise Ham and Others, in which my Opinion was delivered on 16 July 2026. Although, unlike that case, the present case does not concern the mechanism applying a cap on the revenues of certain electricity producers, (47) but concerns the temporary solidarity contribution, those two measures were nevertheless adopted in the same emergency context linked to the energy crisis, are based on a common rationale of redistributing the windfall profits generated in that context and pursue a similar objective of remedying the effects of that crisis. (48)
73. In the first place, I would recall that Article 17 of the Charter guarantees the right to property. Under the first sentence of paragraph 1 thereof, everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. According to the Court’s settled case-law, the protection afforded by that provision does not concern mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity, but concerns rights with an asset value creating an established legal position under the legal system concerned, enabling the holder to exercise those rights autonomously and for his or her own benefit. (49) As the Court has already held, in accordance with Article 52(3) of the Charter, which sets a minimum threshold of protection, the concept of ‘possessions’ must be understood, in line with the case-law of the European Court of Human Rights (ECtHR) relating to Article 1 of Additional Protocol No 1 (signed in Paris on 20 March 1952) to the Convention for the Protection of Human Rights and Fundamental Freedoms (signed in Rome on 4 November 1950) (ECHR), as being able to include both ‘existing possessions’ and ‘assets’, including claims, in respect of which the applicant can argue that he or she has at least a ‘legitimate expectation’ of obtaining effective enjoyment of a property right. (50) However, the Court has also observed that it is apparent from that case-law of the European Court of Human Rights that future income cannot be considered to constitute ‘possessions’ that may enjoy the protection of that article unless it has already been earned, it is definitely payable or there are specific circumstances that can cause the person concerned to entertain a legitimate expectation of obtaining an asset. (51)
74. It seems to me worth noting, from the outset, that it is not disputed, in the present case, that the ‘surplus’ profits referred to in Articles 14 and 15 of Regulation 2022/1854 satisfy the criteria to be characterised as ‘possessions’ within the meaning of Article 17 of the Charter identified by the Court’s case-law referred to above. They therefore fall within the scope of that provision. In so far as it is not disputed that the profits subject to the temporary solidarity contribution were actually received by the producers concerned and were taken from them only subsequently, they must be considered ‘possessions’ within the meaning of that case-law, irrespective of their exceptional and uncertain nature. (52)
75. According to the Court’s settled case-law, the right to property guaranteed in Article 17 of the Charter is not absolute and its exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union. (53) In that regard, under Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, be necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. It is also apparent from the case-law of the European Court of Human Rights that taxation is in principle an interference with the right guaranteed in the first subparagraph of Article 1 of the First Additional Protocol to the ECHR, since it deprives the person concerned of the amount of money which must be paid. (54) It also follows from that case-law that any interference with the right to property, including one resulting from a measure to secure payment of taxes, must strike a ‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. (55) Thus, a financial liability arising out of the raising of taxes or contributions may adversely affect the right to property if it places an ‘excessive burden’ on the person or entity concerned or ‘fundamentally interferes with his, her or its financial position’. (56)
76. Although it is not disputed that the temporary solidarity contribution introduced by Chapter III of Regulation 2022/1854 constitutes an interference with the right to property of the producers concerned, I nevertheless consider that, in the present case, that interference satisfies the conditions required for it to be accepted.
77. Before examining the validity of the relevant provisions of that chapter in the light of Articles 16 and 17 of the Charter, I would point out that, given the economic and social context in which the temporary solidarity contribution was adopted, the EU legislature had broad discretion, in particular because its intervention involved political, economic and social choices and complex assessments and evaluations in a situation characterised by urgency. (57) Thus, only if a measure adopted in this field is manifestly inappropriate in relation to the objectives which the competent institutions are seeking to pursue can the lawfulness of such a measure be affected. (58)
78. In the present case, I would observe, first, that the detailed rules for the application of the temporary solidarity contribution, in particular the basis for its calculation and the applicable rate, are expressly provided for by Regulation 2022/1854 and defined in a clear, precise and detailed manner in Articles 15 and 16 thereof. (59)
79. Second, as regards the requirement that the interference in question must respect the essence of the protected right, I consider that that requirement is also satisfied in the present case. I would point out in that regard that the emergency measures adopted pursuant to Regulation 2022/1854 do not apply to the assets of the undertakings concerned or to their ‘ordinary’ revenues, but are limited to the windfall profits generated by the energy crisis, which those undertakings could not reasonably expect. (60) More specifically, pursuant to Article 16 of that regulation, the temporary solidarity contribution must be set at a minimum rate of 33% and be calculated on the basis of the ‘surplus profits’, defined in Article 2(18) thereof as profits which are above a 20% increase of the average of the taxable profits in the four fiscal years starting on or after 1 January 2018. Moreover, the scope of that contribution is limited to European Union companies and permanent establishments exercising an activity in the sectors referred to in Article 15 of that regulation and deriving at least 75% of their turnover from economic activities in the field of the extraction, mining, refining of petroleum or manufacture of coke oven products, pursuant to Article 2(17) thereof.
80. I observe, third, that the temporary solidarity contribution pursues an objective of general interest of the European Union, which is to mitigate the effects of high energy prices, as is apparent from Article 1 of Regulation 2022/1854. It is clear, in particular, from Articles 14 and 17 and recitals 13, 14, 50, 51 and 64 of that regulation that that contribution covers the surplus profits made by certain undertakings which, because of the energy crisis, have recorded exceptionally high profits, in order to allow those profits to be redistributed in a targeted manner to final electricity customers. That redistribution thus aims to remedy the effects of the energy crisis on the internal market and to ensure affordable energy for households. The temporary solidarity contribution therefore has a direct and clear link with the main objective pursued by that regulation. (61)
81. Fourth, as regards the principle of proportionality, I recall that that principle requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. (62)
82. However, the extraordinary measures introduced by the EU legislature in the context of Regulation 2022/1854 have a strictly limited temporal scope. (63) As is apparent from Article 18 of that regulation, the temporary solidarity contribution applies only to surplus profits realised in the fiscal years 2022 and/or 2023.
83. Furthermore, as regards the degree of interference with the right to property in the light of the objective pursued, I would point out, as noted in point 79 of this Opinion, that although the temporary solidarity contribution is set at a minimum rate of 33% and Member States remain free to apply a rate higher than that provided for in Article 16 of Regulation 2022/1854, that rate applies only to ‘surplus profits’, that is to say, the windfall profits resulting from external circumstances linked to the crisis situation. It must also be noted that the parameters of that contribution appear to have been conceived in such a way as to preserve the profit margin of the undertakings concerned which does not derive from those specific circumstances. The fact, noted by the referring court, that Regulation 2022/1854 does not set a cap on the rate provided for in Article 16 thereof cannot, in itself, call into question the validity of the relevant provisions of that regulation relating to the temporary solidarity contribution. As has been explained in point 79 of this Opinion, that contribution applies, on the one hand, only to certain undertakings which have made profits exceeding those which they could normally have expected and, on the other hand, only to a fraction of those windfall profits.
84. It follows that, by choosing to pursue the objective of general interest of Regulation 2022/1854, which is to mitigate the effects of exceptionally high energy prices through exceptional, targeted and time limited measures, the EU legislature ensured that the interference with the right to property of the undertakings concerned was limited and prevented the ensuing financial burden from being excessive. Consequently, the temporary solidarity contribution does not go beyond what is necessary to attain that objective.
85. In the second place, Article 16 of the Charter, which concerns the freedom to conduct a business, provides that that freedom is recognised in accordance with EU law and national laws and practices. According to the Court’s settled case-law, the protection afforded by that article includes, in particular, the freedom to exercise an economic or commercial activity, the freedom of contract and free competition, as well as the right for any business to be able freely to use, within the limits of its liability for its own acts, the economic, technical and financial resources available to it. (64) Furthermore, that freedom, which does not constitute an absolute right, may be subject to a broad range of interventions on the part of public authorities which may, in the public interest, limit the exercise of economic activity. That circumstance is reflected, in particular, in the way in which EU legislation should be assessed in the light of the principle of proportionality under Article 52(1) of the Charter. (65)
86. In the light of those considerations, the introduction of the temporary solidarity contribution cannot, in itself, be regarded as constituting a restriction on the exercise of the freedom to conduct a business of the producers concerned. When applied, under the conditions set out in Articles 15 and 16 of Regulation 2022/1854, to ‘surplus’ profits resulting from exceptional circumstances, that contribution does not seem capable of affecting either the investment capacity of the undertakings concerned or their freedom to exercise their economic activity. (66) I would recall, in that regard, that the contribution applies only to a fraction of the profits made by those undertakings, namely those which, in accordance with Article 15 of that regulation, are above a 20% increase of the average of their taxable profits in the years 2018 to 2021. Recital 54 of that regulation states, in that regard, that that approach aims to ensure that part of the profit margin, which does not result from the unpredictable developments in the energy markets following Russia’s war of aggression against Ukraine, remains available to enable those undertakings to make future investments or to ensure their financial stability.
87. In any event, even if the Court were to consider that the temporary solidarity contribution is capable of restricting the exercise of the freedom to conduct a business enshrined in Article 16 of the Charter, such a restriction would, in my view, be justified on the same grounds as those set out in points 78 to 84 of this Opinion. (67)
88. Following that analysis, I consider that the temporary solidarity contribution provided for by Regulation 2022/1854 does not impose an excessive burden on the applicants in the main proceedings and does not constitute, in the light of the objectives of general interest which it pursues, a disproportionate interference with their freedom to conduct a business or their right to property. That conclusion also takes into account the specific emergency context in which the measure at issue in the main proceedings was adopted, the seriousness of the situation which it was intended to address and its exceptional and temporary nature.
89. In the light of the foregoing, I am of the view that the answer to the third question must be that Chapter III of Regulation 2022/1854, and in particular Articles 14 and 15 thereof, does not infringe Articles 16 and 17 of the Charter.
D. The fourth question referred for a preliminary ruling
90. By its fourth question, the referring court asks, in essence, whether the general principles of legal certainty and non-retroactivity preclude legislation of a Member State, which was adopted and published after 31 December 2022 and entered into force on 2 August 2023, from providing for the application of the temporary solidarity contribution referred to in Article 14(1) of Regulation 2022/1854 in respect of the fiscal years 2022 and 2023. (68)
91. I must observe, at the outset, that a similar question was raised both in the case which gave rise to the judgment in Electrabel and Others (69) and in 2Valorise Ham and Others, concerning the Belgian legislation implementing Regulation 2022/1854. However, it should be noted that, unlike those two cases, the present case does not concern the application of an emergency measure introduced by that regulation outside its temporal scope. (70) By contrast, the present case concerns the application of such a measure during a period covered by that regulation, in a situation in which a Member State belatedly implemented that regulation in its national legal order.
92. As a preliminary point, it should be noted that it is not for the Court, in proceedings brought under Article 267 TFEU, to rule on the compatibility of rules of domestic law with EU law, although the Court is nonetheless competent to give the national court full guidance on the interpretation of EU law in order to enable that court to determine whether those rules are so compatible. (71)
93. As I have pointed out in the context of the analysis of the second question referred, the principle of legal certainty precludes an EU measure from taking effect from a point in time before its publication, although it may exceptionally be otherwise where an aim in the public interest so demands and the legitimate expectations of those concerned are duly respected. (72)
94. Moreover, I would point out that the requirements flowing from the protection of the general principles recognised in the EU legal order, including the principle of legal certainty, are also binding on the Member States when they implement EU regulations. (73) This is, in particular, true of the 2023 Act which, as is clear from its title and from the order for reference, established the measures necessary to implement the temporary solidarity contribution provided for in Chapter III of Regulation 2022/1854. It follows that the principle of non-retroactivity also applies to such legislation, in accordance with the case-law of the Court referred to in point 56 of this Opinion.
95. In the present case, the referring court asks whether legislation such as the 2023 Act is consistent with those two principles, since it provides for the application of a temporary solidarity contribution in respect of the fiscal years 2022 and 2023, even though it was not adopted and published until after 31 December 2022 and did not enter into force until 2 August 2023. (74)
96. I note, first of all, that the issue of the retroactivity of the 2023 Act does not arise in relation to the application of the temporary solidarity contribution in respect of the fiscal year 2023. Such application amounts to the application of a new legal rule to a legal situation that is not yet established or is new, within the meaning of the case-law of the Court referred to in point 56 of this Opinion. It is, however, otherwise as regards the fiscal year 2022. (75) The 2023 Act, which was signed into law on 17 July 2023 and entered into force on 2 August 2023, does in fact also apply to that fiscal year, even though that year had already ended by the date of its adoption and entry into force. Consequently, it must be regarded as having retroactive effect.
97. That said, for the reasons set out in the following points of this Opinion, I consider that the principle of legal certainty is not infringed in the present case, since the two conditions to which the Court makes the retroactive application of a legal rule subject, exceptionally, are satisfied, namely that an objective of general interest so demands and the legitimate expectations of those concerned are duly respected.
98. On the one hand, it seems to me difficult to dispute that Regulation 2022/1854, which provides, inter alia, for the introduction of the temporary solidarity contribution, pursues an objective of general interest. As explained in point 84 of this Opinion, that contribution is an extraordinary and temporary emergency measure aimed at remedying the effects of the energy crisis. The application of that contribution to profits realised in the fiscal year 2022 is all the more justified since those profits were directly linked to the energy crisis. (76)
99. As regards, on the other hand, the principle of the protection of legitimate expectations, I am of the view, for the same reasons as those set out in points 67 and 68 of this Opinion, that that principle is also respected in the present case. Moreover, there is nothing in the file before the Court to suggest that the Irish authorities infringed that principle.
100. Furthermore, I would point out that, in order to assess whether the principle of the protection of legitimate expectations was respected with regard to the undertakings concerned, the Court has already held, in relation to national legislation implementing EU law, that it is necessary to take into account, in the specific case, the procedures for dissemination of information normally used by the Member State concerned and the circumstances of the case. (77) In addition to the factual matters set out in the order for reference, which tend to establish that that principle was indeed respected, (78) Regulation 2022/1854 was adopted in October 2022 (79) and expressly provided for the application of the temporary solidarity contribution in respect of the fiscal year 2022. (80) I consider that those elements prevent the applicants in the main proceedings from successfully relying on a legitimate expectation that the surplus profits realised during that fiscal year would be maintained or that the contribution would not be applied to those profits. (81)
101. Finally, I note that none of the additional circumstances put forward by the referring court in its fourth question appears capable of calling into question the foregoing analysis in the light of the abovementioned case-law of the Court on legal certainty, non-retroactivity and the protection of legitimate expectations. (82)
102. Consequently, and subject to factual verification which it is for the referring court alone to carry out, the legitimate expectations of the undertakings concerned appear to have been duly respected as regards the retroactive application of the temporary solidarity contribution in respect of the fiscal year 2022.
103. In the light of the foregoing, I am of the view that the answer to the fourth question must be that the general principles of legal certainty and non-retroactivity must be interpreted as not precluding the application of the temporary solidarity contribution referred to in Article 14(1) of Regulation 2022/1854 to the fiscal years 2022 and 2023, where this application is provided for by national legislation which was adopted and published after 31 December 2022 and entered into force on 2 August 2023.
E. The fifth question referred for a preliminary ruling
104. By its fifth question, the referring court asks, in essence, whether Articles 16 and 17 of the Charter and the principle of proportionality preclude legislation of a Member State implementing the mandatory temporary solidarity contribution referred to in Article 14(1) of Regulation 2022/1854, which sets the rate of that contribution at 75% and excludes, for the purpose of calculating its tax base, the taking into account of losses incurred prior to 2018. (83)
105. I note, as a preliminary point, that Regulation 2022/1854 affords Member States considerable discretion in implementing the emergency measures which it provides for, including as regards the provisions relating to the temporary solidarity contribution. (84) Thus, Article 16(1) of that regulation merely sets a minimum rate of 33% for that contribution without specifying a maximum rate. Recital 54 of that regulation states, in that regard, that Member States remain free to apply a rate higher than 33% and to set the rate they deem acceptable and appropriate in the light of their national legal systems.
106. As regards the exclusion of losses incurred prior to 2018 from the calculation of the tax base for the temporary solidarity contribution, it is important to note that Regulation 2022/1854 governs neither the treatment of losses from previous fiscal years (85) nor the possibility of deducting those losses when determining surplus profits in respect of the years 2022 and/or 2023. That matter falls within the discretion left to Member States, as is apparent in particular from recital 55 of that regulation.
107. It therefore follows from the foregoing that Regulation 2022/1854 does not, in principle, preclude a measure such as that at issue in the main proceedings which provides, on the one hand, for a tax rate of 75% and, on the other hand, for the exclusion of losses incurred prior to 2018 from the calculation of the tax base for the temporary solidarity contribution.
108. Having clarified that point, it is now necessary to examine the issue at the heart of the fifth question referred, that is to say whether the detailed rules for calculating the temporary solidarity contribution as established by the Irish legislature are compatible with Articles 16 and 17 of the Charter. It is clear from the title and wording of the 2023 Act that it is implementing EU law within the meaning of Article 51(1) of the Charter, so that the Charter is applicable to the dispute in the main proceedings. Accordingly, the level of protection of fundamental rights provided for in the Charter must be achieved in such implementation, irrespective of the Member State’s discretion. (86)
109. Consequently, the assessment of whether the temporary solidarity contribution provided for in Regulation 2022/1854 is compatible with Articles 16 and 17 of the Charter, carried out in the context of the third question referred, may be applied to the 2023 Act, provided that account is taken of the specific characteristics of the measure adopted by the Member State when exercising the discretion conferred on it by that regulation. (87)
110. I consider, for the reasons I shall set out in the following points, and subject to the findings which it is for the referring court to make, that the characteristics of the temporary solidarity contribution introduced by the 2023 Act, as described in the order for reference, are not such as to establish an infringement of Articles 16 and 17 of the Charter.
111. On the one hand, there is little doubt that the first of the requirements set out in Article 52(1) of the Charter, which stipulates that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law, is satisfied in the present case. The temporary solidarity contribution is established by the 2023 Act, which expressly sets its rate at 75% and lays down the rules on taking into account previous losses for the purpose of calculating its tax base. Moreover, for reasons similar to those put forward in the context of the third question referred, in particular in point 79 of this Opinion, that measure appears to respect the essence of the freedom to conduct a business and the right to property, guaranteed by Articles 16 and 17 of the Charter, and to pursue an objective of general interest.
112. On the other hand, as regards the proportionality of the 2023 Act in the light of Articles 16 and 17 of the Charter, it is necessary to assess whether the temporary solidarity contribution goes beyond what is appropriate and necessary to attain the objective of general interest pursued by Regulation 2022/1854. In my view, none of the factors identified by the referring court supports the conclusion that that requirement is not satisfied in the present case.
113. In that regard, I would point out that the European Court of Human Rights has held that States enjoy a wide margin of appreciation in the area of taxation and that that court will respect the legislature’s assessment in such matters unless it is devoid of reasonable foundation. (88) Following the same logic, in view of the considerable discretion enjoyed by Member States in implementing Regulation 2022/1854, as noted in point 105 of this Opinion, only measures vitiated by a manifest error of assessment could be sanctioned.
114. In the first place, as regards the rate itself, I note that it applies not to all the profits of the undertakings concerned, but only to their ‘surplus’ profits, with the result that those undertakings retain a part of the profits made. Moreover, it does not follow from the case-law of the European Court of Human Rights referred to above that a tax rate of 75% is, in itself, excessive or confiscatory. (89) Furthermore, as I noted in point 82 of this Opinion, the contribution in question is of a temporary nature and applies only to two expressly defined fiscal years.
115. I would add, still in the context of the assessment of proportionality, that, in accordance with Article 16(2) of Regulation 2022/1854, the temporary solidarity contribution is to apply ‘in addition to’ the regular taxes and levies provided for by the national law of each Member State and independently of those taxies and levies. I note, in that regard, that it follows from the European Court of Human Rights’ case-law cited above that the scope of a tax measure must be assessed in the light of the specific circumstances in each case, having regard to its consequences for the taxpayer concerned, taking into account the effective tax rate applied to the undertakings concerned rather than solely the nominal tax rate provided for by the legislation. (90)
116. It must be observed, in the present case, that it is apparent from the order for reference that the applicants in the main proceedings were not liable for any corporation tax or for any other mandatory payment to the Irish tax authorities based on their taxable profits in respect of profits made in the years 2022 and 2023, on account of the setting off of historical losses. It therefore seems that, in practice, the Irish solidarity contribution was the only tax levied on the applicants’ total profits in 2022, with the result that the effective overall tax rate on their profits actually amounted to 25.2%.
117. In the second place, as regards the exclusion of losses incurred by the applicants in the main proceedings prior to 2018 from the calculation of the tax base for the contribution in question, nothing in the file submitted to the Court appears to indicate that that exclusion is contrary to Articles 16 and 17 of the Charter, that it goes beyond what is necessary to attain the objective pursued or that that objective could be achieved by means of a less onerous measure.
118. In that regard, I would like to point out that, for the purpose of calculating surplus profits, the 2023 Act allows losses incurred from 2018 onwards to be deducted. Moreover, historical losses from previous fiscal years, including those incurred prior to 2018, remain deductible for the purpose of calculating standard corporation tax and will continue to be deductible in subsequent financial years. It is also undisputed, as noted in point 116 of this Opinion, that, in the light of the scale of the historical losses still available, the applicants in the main proceedings will pay no corporation tax or any other tax on the profits realised in the fiscal years 2022 and 2023. It follows that the only levies to which those profits will be subject, for the benefit of the State budget, derive from the temporary solidarity contribution, and this is the case only because losses incurred prior to 2018 are excluded from the calculation of its tax base.
119. It is therefore apparent that, if Ireland had permitted the deduction of losses incurred prior to 2018, the amount of the contribution in question levied on the undertakings concerned would have been considerably reduced, or non-existent, thereby undermining the financing of national support measures for households and businesses. In that regard, I consider Ireland’s argument particularly relevant that, in view of the very high level of losses resulting from the initial investments made by undertakings in the energy sector, taking into account losses incurred prior to 2018 would have led to a substantial reduction in the amount of the contribution, or reduced it to zero, a consequence which would have been likely to compromise the attainment of the objective pursued by Regulation 2022/1854.
120. In the third and last place, I consider that several other factors identified by the referring court are also such as to support the above analysis of proportionality or, at the very least, do not permit it to be called into question. This is so, in particular, because the amount of the sums levied remains well below the expenditure incurred by the Member State and because the temporary solidarity contribution did not deter some of the applicants in the main proceedings from pursuing their activities in Ireland. (91)
121. In the light of the foregoing, I am of the view that the answer to the fifth question must be that Articles 16 and 17 of the Charter must be interpreted as not precluding legislation of a Member State implementing the mandatory temporary solidarity contribution referred to in Article 14(1) of Regulation 2022/1854 which sets the rate of that contribution at 75% and excludes, for the purpose of calculating its tax base, the taking into account of losses incurred prior to 2018.
V. Conclusion
122. In the light of the foregoing, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the High Court (Ireland) as follows:
(1) Council Regulation (EU) 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices, including Chapter III thereof, was validly adopted on the basis of Article 122(1) TFEU, in compliance with the requirements of that provision and, therefore, within the limits of the powers conferred on the European Union and in accordance with the procedure that that provision lays down.
(2) Chapter III of Regulation 2022/1854, and in particular Articles 14 and 15 thereof,
must be interpreted as not infringing the general principles of legal certainty, non-retroactivity of EU measures and proportionality.
(3) Chapter III of Regulation 2022/1854, and in particular Articles 14 and 15 thereof,
must be interpreted as not infringing Articles 16 and 17 of the Charter of Fundamental Rights of the European Union.
(4) The general principles of legal certainty and non-retroactivity,
must be interpreted as not precluding the application of the temporary solidarity contribution referred to in Article 14(1) of Regulation 2022/1854 to the fiscal years 2022 and 2023, where this application is provided for by national legislation which was adopted and published after 31 December 2022 and entered into force on 2 August 2023.
(5) Articles 16 and 17 of the Charter of Fundamental Rights
must be interpreted as not precluding legislation of a Member State implementing the mandatory temporary solidarity contribution referred to in Article 14(1) of Regulation 2022/1854 which sets the rate of that contribution at 75% and excludes, for the purpose of calculating its tax base, the taking into account of losses incurred prior to 2018.
1 Original language: French.
2 Council Regulation of 6 October 2022 on an emergency intervention to address high energy prices (OJ 2022 L 261 I, p. 1).
3 See, in that regard, judgments of 18 December 2025, Electrabel and Others (C‑633/23, EU:C:2025:991), and of 22 January 2026, Secab (C‑423/23, EU:C:2026:32), cases in which I drafted the Opinion. See, also, my Opinions in Axpo Energy Romania and PPC Renewables Romania (C‑251/24 and C‑392/24, EU:C:2026:521), and in 2Valorise Ham and Others (C‑467/24, ‘2Valorise Ham and Others’, EU:C:2026:608). Moreover, a number of actions for annulment currently pending before the General Court have been brought against that regulation. See, in that regard, Electrawinds Shabla South v Council (T‑759/22); Vermilion Energy Netherlands and Others v Council (T‑775/22); Vermilion Exploration and Production Ireland and Vermilion Energy Ireland v Council (T‑795/22); ExxonMobil Producing Netherlands and Mobil Erdgas Erdöl v Council (T‑802/22) and Petrogas E&P Netherlands v Council (T‑803/22).
4 Those two cases raise, in part, questions which are identical or similar to those raised in the present case, in that they concern the provisions of Regulation 2022/1854 relating to the temporary solidarity contribution and to equivalent national measures. Moreover, like Varo Energy Belgium and Others (C‑358/24), the present case also concerns the validity of the legal basis on which that regulation was adopted, in particular as regards recourse to Article 122(1) TFEU for the adoption of Chapter III thereof.
5 Regulation of the European Parliament and of the Council of 20 December 2006 establishing the statistical classification of economic activities NACE Revision 2 and amending Council Regulation (EEC) No 3037/90 as well as certain EC Regulations on specific statistical domains (OJ 2006 L 393, p. 1).
6 That act entered into force by means of the statutory instrument entitled ‘Energy (Windfall Gains in the Energy Sector) (Temporary Solidarity Contribution) Act 2023 (Commencement) Order 2023’ (S.I. No 388 of 2023).
7 They are, more specifically, Vermilion Energy Ireland Ltd, Vermilion Exploration and Production Ireland Ltd and Vermilion Energy Corrib Ireland Ltd.
8 Namely the Minister for the Environment, Climate and Communications (Ireland), Ireland and the Attorney General (Ireland).
9 See judgment of 11 June 2026, Centro Petroli Roma (C‑386/24, EU:C:2026:471, paragraph 56 and the case-law cited).
10 The answer to be given to that question is capable of calling into question the legal basis of that act and, consequently, of having a bearing on the obligation of the applicants in the main proceedings to pay that contribution.
11 The legal framework within which new rules are situated may help to shed light on the purpose of those rules. See, to that effect, judgment of 16 February 2022, Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraphs 121 and 122 and the case-law cited).
12 See, to that effect, judgment of 21 March 2024, Landeshauptstadt Wiesbaden (C‑61/22, EU:C:2024:251, paragraphs 45 to 47 and the case-law cited).
13 Article 122(1) TFEU has also served as the legal basis for the adoption of several other EU acts in response to crisis situations outside the area of energy, in particular during the migration crisis (see Council Regulation (EU) 2016/369 of 15 March 2016 on the provision of emergency support within the Union (OJ 2016 L 70, p. 1)) and during the COVID-19 pandemic (see, in particular, Council Regulation (EU) 2020/521 of 14 April 2020 activating the emergency support under Regulation (EU) 2016/369, and amending its provisions taking into account the COVID‐19 outbreak (OJ 2020 L 117, p. 3)).
14 See, in particular, recitals 13 and 14 of Regulation 2022/1854.
15 See recitals 6, 7 and 9 and Article 1 of Regulation 2022/1854.
16 See recital 13 of Regulation 2022/1854.
17 See, by analogy, judgment of 24 October 1973, Rewe Zentral (10/73, EU:C:1973:111, paragraph 15).
18 See, to that effect, judgment of 16 February 2022, Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 354 and the case-law cited).
19 See recitals 14, 51 and 57 of Regulation 2022/1854.
20 See recital 54 of Regulation 2022/1854. See also points 83 and 84 of this Opinion.
21 See, in particular, Article 3(3) TEU. See, also, to that effect, judgment of 15 July 2021, Germany v Poland (C‑848/19 P, EU:C:2021:598, paragraphs 38 and 41).
22 It also follows from the Court’s case-law that the application of the principle of solidarity does not mean that EU policy must never, under any circumstances, have negative impacts on the particular interests of a Member State in the field concerned. See, to that effect, judgment of 15 July 2021, Germany v Poland (C‑848/19 P, EU:C:2021:598, paragraphs 44, 49, 53 and 73).
23 See Article 194(1) TFEU.
24 See, to that effect, judgment of 12 September 2017, Anagnostakis v Commission (C‑589/15 P, EU:C:2017:663, paragraph 71).
25 The very concept of ‘solidarity’ must be understood as encompassing both Member States and final consumers. It would, in fact, be difficult to conceive of the ‘spirit of solidarity’ as being dissociated from the interests of national consumers, who must, ultimately, also benefit from it.
26 See, in particular, recitals 6, 7, 14 and 57 and Article 17 of Regulation 2022/1854.
27 See, in that regard, point 28 of this Opinion.
28 See, in that regard, Article 114(2) TFEU, as well as Article 194(3) TFEU, which introduces a different procedure for measures in the area of energy which are ‘primarily of a fiscal nature’ (emphasis added).
29 See judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 97), from which it follows that, whilst direct taxation falls primarily within the competence of the Member States, that fact does not prevent the Union from exercising powers in that area, which has, moreover, been the subject of harmonisation measures in certain sectors (see, to that effect, judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission (C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 73)). Furthermore, several directives on direct taxation have been adopted on the basis of Article 115 TFEU (see, in particular, Council Directive (EU) 2022/2523 of 14 December 2022 on ensuring a global minimum level of taxation for multinational enterprise groups and large-scale domestic groups in the Union (OJ 2022 L 328, p. 1)).
30 See, in particular, judgment of 24 October 1973, Balkan-Import-Export (5/73, EU:C:1973:109, paragraphs 14 and 15).
31 See, by analogy, judgments of 24 October 1973, Balkan-Import-Export (5/73, EU:C:1973:109, paragraph 15), and of 24 October 1973, Rewe Zentral (10/73, EU:C:1973:111, paragraph 15). However, that reservation could be regarded as relating to the other provisions of the FEU Treaty specifically intended to address emergency situations, such as Article 66, Article 78(3), Article 143(2), Article 213 and Article 222 TFEU.
32 See judgment of 19 July 2012, Parliament v Council (C‑130/10, EU:C:2012:472, paragraph 80).
33 See judgment of 4 September 2018, Commission v Council (Agreement with Kazakhstan) (C‑244/17, EU:C:2018:662, paragraph 38).
34 With regard to the principle of legal certainty, I would point out that, in the 2Valorise Ham and Others case, the Grondwettelijk Hof (Constitutional Court, Belgium) has already referred to the Court a similar question concerning the validity of Article 6(1) and Article 7(1)(e) of Regulation 2022/1854, which relate to the mechanism applying a cap on the revenues of certain electricity producers. See, to that effect, my Opinion in that case (C‑467/24, ‘my Opinion in 2Valorise Ham and Others’, EU:C:2026:608, points 112 to 117).
35 See, to that effect, judgment of 25 January 2022, VYSOČINA WIND (C‑181/20, EU:C:2022:51, paragraph 47 and the case-law cited).
36 See, to that effect, judgment of 25 January 2022, VYSOČINA WIND (C‑181/20, EU:C:2022:51, paragraph 48 and the case-law cited).
37 See, to that effect, judgment of 25 January 2022, VYSOČINA WIND (C‑181/20, EU:C:2022:51, paragraph 49 and the case-law cited).
38 In the present case, the question of the possible retroactive application of the temporary solidarity contribution arises only in respect of the fiscal year 2022. The application of that contribution in respect of the fiscal year 2023 cannot confer retroactive effect on Regulation 2022/1854, since that regulation was adopted before the start of that fiscal year.
39 See, to that effect, judgment of 26 March 2026, Pumpyanskiy and Others v Council (C‑696/23 P, C‑704/23 P, C‑711/23 P, C‑35/24 P and C‑111/24 P, EU:C:2026:245, paragraph 188 and the case-law cited).
40 See, to that effect, judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility Package) (C‑541/20 to C‑555/20, EU:C:2024:818, paragraphs 158, 159 and 162 and the case-law cited).
41 See, to that effect, judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility Package) (C‑541/20 to C‑555/20, EU:C:2024:818, paragraphs 616 and 617 and the case-law cited).
42 Articles 14 and 15 of Regulation 2022/1854 set out, clearly and in detail, the framework for the application of the temporary solidarity contribution introduced by that regulation. More specifically, Article 14 thereof identifies with sufficient precision the sectors of activity subject to that contribution, the detailed rules for its calculation and the cases in which certain undertakings may be exempted. The applicable rate is, for its part, expressly set out in Article 16 of that regulation.
43 See, in that regard, my Opinion in 2Valorise Ham and Others (point 115).
44 See, to that effect, my Opinions in Secab (C‑423/23, EU:C:2025:63, points 52 and 53 and the case-law cited) and 2Valorise Ham and Others (point 116).
45 It must be noted, in that regard, that the Commission had, on 8 March 2022, published the communication entitled ‘RepowerEU: Joint European Action for more affordable, secure and sustainable energy’ (COM(2022) 108 final, p. 5), in which it advocated various measures intended to tackle the energy crisis, including the possibility for Member States to adopt temporary tax measures on windfall profits.
46 The temporary solidarity contribution introduced by Regulation 2022/1854 relates to ‘surplus profits’, which are windfall profits resulting from unpredictable circumstances that affected the energy markets and that the companies concerned could not therefore reasonably anticipate.
47 See Articles 6 to 8 of Regulation 2022/1854.
48 In that connection, I would point out that, by the fourth and sixth questions which it raised in 2Valorise Ham and Others, the referring court asked, in essence, whether Article 6(1) of Regulation 2022/1854 was valid in the light of Articles 16 and 17 of the Charter, in that it provided for a levy rate of 100% on surplus market revenues. See, in that regard, my Opinion in 2Valorise Ham and Others (points 64 to 76 and 89 to 102).
49 See, to that effect, judgments of 15 April 2021, Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others (C‑798/18 and C‑799/18, EU:C:2021:280, paragraph 33 and the case-law cited), and of 10 July 2025, INTERZERO and Others (C‑254/23, EU:C:2025:569, paragraph 145 and the case-law cited).
50 See, to that effect, judgments of 15 April 2021, Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others (C‑798/18 and C‑799/18, EU:C:2021:280, paragraphs 35 and 36), and of 5 September 2024, Novo Banco and Others (C‑498/22 to C‑500/22, EU:C:2024:686, paragraph 112).
51 See judgment of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission (C‑398/13 P, EU:C:2015:535, paragraph 61).
52 See, by analogy, my Opinion in 2Valorise Ham and Others (point 66).
53 See judgment of 10 September 2024, Neves 77 Solutions (C‑351/22, EU:C:2024:723, paragraph 85 and the case-law cited).
54 See, in particular, ECtHR, 29 April 2008, Burden v. the United Kingdom, CE:ECHR:2008:0429JUD001337805, § 59.
55 See, inter alia, ECtHR, 22 January 2009, ‘Bulves’ AD v. Bulgaria, CE:ECHR:2009:0122JUD000399103, § 62.
56 See, inter alia, ECtHR, 3 July 2003, Buffalo S.r.l in liquidation v. Italy, CE:ECHR:2003:0703JUD003874697, § 32. See also, to that effect, judgment of 10 July 2025, INTERZERO and Others (C‑254/23, EU:C:2025:569, paragraph 153).
57 See, to that effect, judgment of 16 December 2008, Arcelor Atlantique and Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 57 and the case-law cited).
58 See judgment of 29 July 2024, Belgian Association of Tax Lawyers and Others (C‑623/22, EU:C:2024:639, paragraph 26 and the case-law cited).
59 See also recital 54 of Regulation 2022/1854, which provides clarification on the detailed rules for calculating the temporary solidarity contribution.
60 As is apparent from recital 50 of Regulation 2022/1854, the undertakings falling within the scope of the temporary solidarity contribution realised windfall profits which derived not from their own commercial conduct but from sudden external circumstances linked to the crisis situation.
61 Moreover, there is nothing in the order for reference which calls into question the suitability of the temporary solidarity contribution for contributing to the financing of the support measures for final electricity customers provided for by Regulation 2022/1854.
62 See judgment of 22 January 2013, Sky Österreich (C‑283/11, EU:C:2013:28, paragraph 50 and the case-law cited).
63 See, by analogy, judgment of 13 June 2017, Florescu and Others (C‑258/14, EU:C:2017:448, paragraph 55).
64 See, to that effect, judgments of 10 July 2025, INTERZERO and Others (C‑254/23, EU:C:2025:569, paragraph 140 and the case-law cited), and of 13 November 2025, PB Vi Goods (C‑563/24, EU:C:2025:887, paragraph 27 and the case-law cited).
65 See, to that effect, judgment of 10 July 2025, INTERZERO and Others (C‑254/23, EU:C:2025:569, paragraph 141 and the case-law cited).
66 See, by analogy, my Opinion in 2Valorise Ham and Others (point 93).
67 Any restriction on the freedom to conduct a business which might result from the application of the temporary solidarity contribution appears to respect the essence of that freedom, since that measure relates only to a fraction of the ‘surplus’ profits of the undertakings concerned and applies only for a period limited to two fiscal years.
68 In its fourth question, the referring court also asks the Court of Justice to clarify whether the answer to that question depends, in particular, on the following circumstances: (a) Regulation 2022/1854 was published on 7 October 2022 and came into effect the next day; (b) that regulation requires Member States to impose a temporary solidarity contribution or equivalent national measures in relation to the years 2022 and/or 2023; (c) the operations which generated the profits realised by the applicants in the main proceedings in respect of the fiscal year 2022 had already been completed by the date on which that regulation came into effect; (d) the 2023 Act was signed into law on 17 July 2023 and entered into force on 2 August 2023; (e) that legislation imposes a civil liability only; and (f) a company related to the applicants in the main proceedings stated, after the adoption of that regulation and after the announcement of the measures adopted by the Member State to implement the temporary solidarity contribution, that it viewed increasing its working interest in the Corrib gas field as an ‘attractive investment’.
69 Judgment of 18 December 2025 (C‑633/23, EU:C:2025:991).
70 In so far as it is relevant, I would recall that, in those two cases, the Belgian courts’ doubts arose from the application of the levy introduced by the national legislation at issue on surplus revenues realised in Belgium during the period between 1 August 2022 and 30 June 2023, whereas Regulation 2022/1854 did not enter into force until 8 October 2022, the cap laid down by it was applicable only for the period from 1 December 2022 to 30 June 2023, and that regulation did not expressly provide that Member States could apply that cap before 1 December 2022.
71 See, to that effect, judgment of 7 March 2013, van den Booren (C‑127/11, EU:C:2013:140, paragraph 26 and the case-law cited).
72 See, to that effect, judgment of 26 April 2005, ‘Goed Wonen’ (C‑376/02, EU:C:2005:251, paragraph 33 and the case-law cited), as well as points 56 and 60 of this Opinion.
73 See, to that effect, judgment of 15 July 2004, Gerekens and Procola (C‑459/02, EU:C:2004:454, paragraphs 21 and 22 and the case-law cited).
74 Although this consideration is not, in itself, sufficient to establish that the 2023 Act is contrary to EU law, I note that Ireland failed to comply with the time limit laid down in Article 14(3) of Regulation 2022/1854, under which Member States were required to adopt and publish, by 31 December 2022, the measures necessary to implement the temporary solidarity contribution.
75 I also note that, in the context of its third question, the referring court stated that certain operations which generated surplus profits had been ‘completed’ before the publication and entry into force of the 2023 Act.
76 See recitals 64 and 65 of Regulation 2022/1854.
77 See, to that effect, judgment of 26 April 2005, ‘Goed Wonen’ (C‑376/02, EU:C:2005:251, paragraph 43).
78 In the present case, it is apparent from the order for reference not only that the national authorities did not give any precise, unconditional and consistent assurances – within the meaning of the Court’s case-law referred to in point 64 of this Opinion – capable of giving rise to legitimate expectations as to the maintenance of surplus profits or the non-application of the temporary solidarity contribution in respect of the fiscal year 2022, but that they, on the contrary, announced to the undertakings concerned, before the end of 2022, that that measure would be applied. The referring court states, in that regard, that meetings between the undertakings falling within the scope of that contribution began at the end of October 2022, during which those authorities informed the undertakings of the elements likely to form part of the national measures implementing Chapter III of Regulation 2022/1854. Moreover, in November 2022, the public was informed, by means of a press release, that that measure would apply to the surplus profits realised in the fiscal years 2022 and 2023.
79 According to Article 22(1) of Regulation 2022/1854, that regulation entered into force on the day following that of its publication in the Official Journal of the European Union, namely 8 October 2022.
80 See recital 65 of Regulation 2022/1854.
81 See, by analogy, judgment of 10 September 2009, Plantanol (C‑201/08, EU:C:2009:539, paragraph 54 and the case-law cited), in which the Court held, in a similar context, that a national legislative amendment adopted under a directive on fiscal matters which gives wide powers to the Member States cannot be considered to be unforeseeable.
82 Nor can that analysis be called into question by, first, the fact that the 2023 Act is an instrument of ‘civil’ law and, second, the statement by a company related to the applicants in the main proceedings which, following the adoption of Regulation 2022/1854 and the announcement of the measures adopted by the Member State to implement the temporary solidarity contribution, viewed increasing its working interest in the Corrib gas field to be an ‘attractive investment’.
83 I would point out that, by its fifth question, the referring court also asks the Court of Justice to determine whether the answer to that question depends on the various factors which it lists and which are reproduced in point 22 of this Opinion.
84 That discretion also allows Member States to adopt measures which they deem appropriate in the light of characteristics specific to their national markets, subject to the requirement not to undermine the effective application of Regulation 2022/1854 and the requirement to comply with the general principles of EU law. It follows that, in the light of the discretion thus afforded to Member States, only measures vitiated by a manifest error of assessment could be sanctioned. See also, to that effect, my Opinion in 2Valorise Ham and Others (points 80 and 84 and the case-law cited).
85 Article 15 of Regulation 2022/1854 provides a relatively flexible framework for defining the tax base for the temporary solidarity contribution.
86 See, to that effect, judgment of 15 April 2021, Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others (C‑798/18 and C‑799/18, EU:C:2021:280, paragraph 31 and the case-law cited).
87 However, I would point out that the assessment of whether the national legislation is consistent with the criteria adopted for determining its compatibility with the aforementioned provisions of the Charter must be carried out in concreto, in the light of the circumstances of this case, and not in the abstract. Accordingly, it is for the referring court to ascertain, having regard to the circumstances of the main proceedings, whether those criteria are fulfilled and whether that legislation actually satisfies the requirements arising from Articles 16 and 17 of the Charter. The Court may, however, provide the referring court with guidance as to interpretation necessary for that assessment.
88 See, inter alia, ECtHR, 15 January 2015, Arnaud and Others v. France, CE:ECHR:2015:0115JUD003691811, § 27.
89 See, in particular, judgments of the ECtHR of 25 June 2013, Gáll v. Hungary, CE:ECHR:2013:0625JUD004957011, and of 15 January 2015, Arnaud and Others v. France, CE:ECHR:2015:0115JUD003691811, from which it follows, in essence, that the mere fact that a tax rate is exceptionally high is not, in itself, sufficient to establish a violation of Article 1 of the First Additional Protocol, since the ECtHR’s assessment must relate to the measure as a whole and take into account the circumstances in which it is applied.
90 See, to that effect, ECtHR, 25 June 2013, Gáll v. Hungary, CE:ECHR:2013:0625JUD004957011, § 61.
91 This is the case, for example, with the statement by a company related to the applicants in the main proceedings, which, following the adoption of Regulation 2022/1854 and the announcement of the national measures implementing the temporary solidarity contribution, regarded the increase in its working interest in the Corrib gas field as an ‘attractive investment’.