In 2014, the Constitutional Court held as unconstitutional the provision of Art. 35a of ERSA, which introduced a fee for the production of electricity from wind and solar energy.

The claims for restitution of the fees which had already been paid under Art. 35a ERSA led to a contradiction in the case-law. Some of the judges find that this claim is a tort claim, insofar as “the adoption of an unconstitutional law is a tort” and its application “inevitably causes damage to the legal persons”. Pursuant to other opinions, the remedy in such cases is based upon the principle of unjust enrichment. Accordingly, the second group does not award interest for delay for the period preceding the filing of the statement of claim if a payment invitation had not been sent to the defendant.

The latter contradiction led to the initiation of Interpretative case 1/2022, whereby the following legal issue shall be resolved: “What is the legal ground for a claim filed against the State for restitution of fees which had been collected by the State on the grounds of Art. 35a ERSA – considering that this provision was held as unconstitutional and the National Assembly hasn’t remedied the damage which has arisen from the application of the said provision on the grounds of Art. 22, Para. 4 of the Constitutional Court Act – a tort or an unjust enrichment?"