The government returns 300 million euros to energy producers it unconstitutionally overtaxed

A draft Emergency Ordinance (OUG) prepared by the Ministry of Finance shows that the state will reimburse 1.5 billion lei to energy producers who paid a surcharge of 100% of the revenues generated by selling energy at over 450 lei/MWh, a provision that was declared unconstitutional by the CCR last year, but the Court’s reasoning was only published at the beginning of this month.

The OUG regarding the refund of amounts paid to the Energy Transition Fund, put into public debate by the Ministry of Finance, shows, in terms of budgetary impact, that the budget will bear, estimated, the payment of 1.5 billion lei, i.e. about 300 million euros, in compensation for companies as a result of the fact that the surcharge legislation was declared unconstitutional.

The compensation is paid to “electricity producers/aggregated entities that invoked the exception of unconstitutionality prior to the publication of this decision in the Official Gazette of Romania, Part I, and to those who have cases pending before the courts with the object of returning the amounts of money related to the contribution paid until the date of publication of the decision”, the GEO’s substantiation note shows.

The procedure for returning the amounts provided for by this emergency ordinance is established by order of the president of the National Agency for Fiscal Administration, the draft also shows. The amounts are returned after a request submitted to the fiscal body.

From what we know for sure, the companies Ground Investment Corp – S.R.L. from Bucharest, Elektra Green Power – S.R.L. from Bucharest, Elektra Wind Power – S.R.L. from Bucharest, Endless Energy Production – S.R.L. Bucharest, those that invoked the exception of unconstitutionality of the 100% overtaxation at the CCR and won, will be compensated. Then to those who prove that they sued the state in the respective case, having files pending until the time of publication of the decision.

“The provisions of the Administrative Litigation Law are applicable to the other categories of taxpayers, as the case may be,” the draft GEO shows.

What happened to the surcharge

The Constitutional Court ruled, in November 2024, that the surcharge on electricity producers, decided by GEO 27/2022, is unconstitutional, after the above companies raised the exception.

The contested article and assessed as unconstitutional practically instituted the surcharge on all electricity producers, and the annex detailed the method of calculating the tax. Essentially, any electricity producer, including those in the renewable sector, had to pay 100% of what exceeded the price of 450 lei/MWh, later 400 lei, regardless of how much energy it sold. The money went to the Energy Transition Fund, from which the suppliers who were forced to invoice the capped prices for energy and gas to their customers were paid (never on time, and there are still arrears of one billion euros).

However, the CCR’s motivation came only in June 2025. The CCR showed that the 100% surcharge imposed on energy companies is not constitutional because its level is too high, so it is disproportionate and actually represents a nationalization of revenues. The tax, known as the solidarity contribution, is legal in itself, but its level must be lowered, the CCR explained in the motion given in June.

However, since February the Government had decided to lower this percentage through GEO 6, from 100% to 80%, a level that is also practiced now.