The Swedish Electricity Certificates Act and its compatibility with the European Convention on Human Rights

The Swedish government encourages the development of electricity produced from renewable sources using an electricity certificates system. The system is regulated in the Swedish Electricity Certificates Act (lag (2003:113) om elcertifikat).

The regulation imposes a penalty fee on producers for those that have received certificates grounded on incorrect or misleading information. Once the penalty fee has been charged, the legislation does not allow any adjustments, even in the case of an unjustified penalty.

This article addresses the question whether this scheme is compatible with art. 6 of the European Convention on Human Rights (the Convention). It is concluded that the penalty fee and how it is regulated in the Electricity Certificates Act is not in conformity with the Convention and therefore does not comply with EU law.

Regulatory changes are needed in the sense that the Electricity Certificates Act has to take into account any reasons for reducing a penalty fee.