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Electricity market in France

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Following on from a public monopoly supplying electricity at administered rates, the creation of the electricity market in France spans a quarter of a century, from the preparatory work of the European Commission in the 1980s to the law on the new organization of the electricity market (NOME law) in December 2010.

Key legislative changes have included the restructuring of the state-owned company Électricité de France (EDF). These changes ended EDF's monopoly on electricity generation and supply, introduced partial privatization by opening up its capital, and facilitated access to the transmission network for other market participants.

Additionally, new regulatory institutions were established, such as the Commission de Régulation de l'Energie (CRE) and the Médiateur National de l'Energie (National Energy Mediator), to oversee the sector and address consumer issues. The overall organization of electricity markets has also been increasingly aligned with European Union regulations.

History

The Energy Code, established in 2011, consolidates existing laws related to energy across all its forms. Since its creation, the Code has been continuously updated to address various issues, including consumer protection, securing electricity supply, and overseeing new technologies.

In October 2012, the Treaty on the Functioning of the European Union (TFEU) ruled that energy and trans-European energy transport networks would henceforth be a shared competence between the European Union and its member states.

Public monopoly from 1946 to 1997

France, on the eve of EDF's nationalization, electricity was generated by 86 thermal power plants and 300 hydroelectric plants, owned by 54 and 100 private companies respectively. Transmission networks were shared between 86 companies. As for electricity distribution, 1,150 companies managed the market.

Law no. 46-628, passed on April 8, 1946 on the nationalization of electricity production, transmission, distribution, import, and export, was primarily intended to promote economic reform by “[ousting] the great economic and financial feudalities from the direction of the economy [and] returning to the nation the great means of monopolized production, the fruits of common labor, energy sources and subsoil riches”.

EDF was given financial autonomy, as well as technical and commercial independence. For its financial and accounting management, it followed the rules used in industrial and commercial companies and was subject to taxation.

Since then, the management of national and distribution services has been conducted in such a way as to meet all operating, capital, and investment expenses.

In addition to EDF, the 1946 nationalization law recognized the right of communes wishing to do so to retain a role in the public distribution of electricity, by maintaining the status quo of distribution networks operated by public utilities.

In 2023, some 140 local distribution companies (ELD) were responsible for distribution in around 5% of France, in areas not served by Enedis.

During the period of EDF's monopoly, the roles of distribution and commercial supply to end customers were unified.

In short, EDF was responsible for generation, transmission on the main grids, distribution and commercial supply to end customers, while local electricity distribution companies, where present, were responsible for local generation, distribution, and commercial supply. EDF was also responsible, under government supervision, for the forward-looking development of electricity production and consumption.

From 1946 to 1997, there were no significant legislative changes.

1980 to 1996: Legislative preparation by the European Community

As early as the 1980s, the European Commission was studying the possibilities of opening up the electricity market to competition, for the following reasons:

  • the competitive imperatives of the European common market enshrined in the 1957 Treaty of Rome;
  • the separation in Community law between, on the one hand, the missions of service of general economic interest (SGEI) and, on the other, the operators entrusted with these missions.

During this period, while Great Britain opened up the electricity sector to competition with the Electricity Act 1989, with the aim of bringing supply prices closer into line with production costs, stimulating innovation and obtaining an optimal production fleet, France, relying on the fact that an exception to the applicability of competition rules was allowed in the event of incompatibility with the fulfilment of a public service mission, maintained an integrated monopoly, preventing any new entrant from developing competition in electricity production and marketing. This was interpreted as a barrier to intra-Community trade.

In 1989, the Commission published several reports on the transparency of energy prices for industrial consumers. In addition to price transparency, these reports aimed to identify any unauthorized state aid.

In the early 1990s, the European approach was unexpectedly strengthened by the successful opening up of the UK electricity market to competition, which was accompanied by falling prices on wholesale markets, whetting the appetite of European industrialists who saw cost-cutting opportunities.

This led to Directive 90/377/EEC on the transparency of electricity prices charged to large industrial consumers and Directive 90/547/EEC on the transit of electricity through grids in the Member States.

Since the Amsterdam Treaty of 1997, the European Commission has no longer considered services of general economic interest as a possible exception to the applicability of competition rules.

Consequently, considering that the preliminary conditions for opening up a European electricity market had been met, the Parliament and Council of the European Union adopted Directive 96/92/EC in December 1996 to organize the unification of the internal electricity market by giving consumers the right to choose their supplier.

This directive also defines the essential principle for putting generated electricity onto the grid: economic precedence or merit order, as “merit order” is very commonly used. This principle means that, to meet demand, generating facilities are called according to the increasing cost of the megawatt-hour produced; the higher the cost, the less the generating facility will be called. And, for a given time slot, all the electricity produced, whatever its production cost, is sold at the marginal cost, which is the highest cost. This principle has been maintained in successive changes to the directive until September 2023.

However, in October 2023, the Council of the EU proposed that it be replaced by a system of sharing the risk of wholesale price variations between producers and member states. In November 2023, this proposal remains to be approved by the European Parliament.

Directive 96/92/EC and its counterpart on the internal market for natural gas make up the commission's first energy package.

2000 to 2006: Transposition of European directives

To align with the aforementioned EU directives, France undertook significant legislative reforms in the electricity sector, beginning with Law 2000-108 of February 10, 2000, which aimed at modernizing and developing the public electricity service. This law:

  • defined the notion of “public electricity service”, previously implicit, as having “the purpose of guaranteeing the supply of electricity throughout the national territory, in the public interest”, and explain the related missions, the operators responsible for them, the involvement of public authorities, the methods for setting electricity tariffs for customers not eligible for market offers, and the contributions of electricity producers to the costs attributable to public service missions;
  • defined the principles for programming and issuing operating authorizations for production facilities, the organization of calls for tenders for the construction of new facilities, the terms and conditions of EDF's obligation to purchase small-scale production, and the opportunities granted to municipalities to build small-scale facilities and sell their production;
  • defined the management and missions of the public electricity transmission service, as well as the terms and conditions of access to this transmission network. EDF RTE (Réseau de transport d'électricité) was designated as the operator;
  • maintained the existing organization for the public distribution of electricity to end customers. EDF and the 150 or so non-nationalized distributors, as well as the concession-granting authorities, kept their roles unchanged;
  • defined the conditions for opening up to competition, eligibility, and choice of supplier;
  • defined the conditions for direct network access by new players;
  • imposed the separation of generation, transmission and distribution accounts in EDF's internal accounting system;
  • created a regulatory authority, the Commission de régulation de l'électricité (CRE), and define its missions and powers;
  • authorized EDF to extend its traditional activities to others that contribute directly or indirectly to them - in 2023, the EDF Group had holdings in 263 companies in 12 countries- with the exception of domestic and industrial installations, and authorize EDF to carry out any activity abroad.

In addition, the consumption eligibility thresholds, set in accordance with Directive 96/92/EC, authorizing access to the competitive electricity market, met with great success and were rapidly lowered in member states, encouraging the commission to accelerate this opening-up by positioning new thresholds closer in time.

A second “energy package” was therefore adopted by the Commission on June 26, 2003:

  • Directive 2003/54/EC opening up the electricity markets to new suppliers and giving all consumers the freedom to choose their suppliers;
  • Regulation (EC) no. 1228/2003 on conditions for access to the network for cross-border exchanges in electricity.

In France, Law 2004-803 of August 9, 2004, on the public electricity service and electricity companies implemented several key reforms to align with European directives:

  • assigns public service missions to EDF and local distribution companies (ELD). The possibility of EDF and GDF sharing common services is confirmed. Under article 5, the creation of a joint service is compulsory in the distribution sector for the construction of facilities, project management, network operation and maintenance, metering operations and other tasks relating to these activities;
  • decides to split EDF into two separate companies, one responsible for generation and supply, EDF in this case, and the other for electricity transmission, Réseau de transport d'électricité (RTE), created in 2000. RTE was transformed into a subsidiary of the EDF Group, while its capital remained wholly owned by public bodies, including EDF;
  • authorizes RTE to manage other networks in France and abroad;
  • transfers ownership of EDF's electricity transmission assets to RTE;
  • requires companies distributing electricity to more than 100,000 customers to set up a department to manage this distribution;
  • transforms EDF into a limited company and opens up 30% of its capital.

Law 2006-1537 of December 7, 2006 on the energy sector amends the above-mentioned laws of 2000 and 2004, as well as various articles in the local authority, consumer affairs, labor and employment codes:

  • establishes the principle of eligibility for all end consumers, including domestic consumers;
  • establishes a national energy ombudsman responsible for recommending solutions to disputes between consumers and electricity suppliers, and helping to inform electricity consumers of their rights;
  • introduced a transitional regulated market adjustment tariff (TaRTAM) for two years. This tariff was intended to protect customers from a sharp rise in electricity prices, and was to be replaced by future provisions in the “NOME” law.

In France in 2007, the situation was as follows:

  • any industrial company with adequate financial and technical capacity could build and operate an electricity-generating facility, after obtaining the requisite administrative authorizations;
  • all customers could choose their electricity supplier;
  • the transmission and distribution networks, while retaining public monopoly status, were subject to regulation in line with European directives.

On November 30, 2006, the French Constitutional Council ruled that the French aid system was incompatible with EU law, while the same year, the European authorities initiated infringement proceedings against France for failure to transpose Directive 2003/54 and opened a State aid investigation into the regulated tariffs for the sale of electricity to industrial customers and the TaRTAM.

2007 to 2011: hectic drafting of the NOME law

Various reports, in particular that of the Champsaur Commission on the organization of the electricity market (April 2009) and the impact study on the draft law on the new organization of the electricity market (April 2010), reviewed the recent history of price trends in France and other countries:

  • French production, 90% of which is nuclear and hydroelectric, emits very little CO2 and supplies electricity at very competitive prices;
  • until 2005, market prices were lower than regulated sales tariffs. In that year, the reduction of excess production capacity, rising fuel prices and the introduction of the Emissions Trading Scheme led to a sharp rise in market prices, while electricity production costs in France were not sensitive to these causes;
  • in neighboring countries, and Germany in particular, in line with the economic theory of the Pareto optimum, the market price was set, according to the principle of economic precedence, by the most expensive generation unit;
  • network interconnection meant that the principle of price formation, economic precedence, had to be extended to France;
  • ultimately, in France, moderate production costs are no longer reflected in market prices, and consumers who have opted for market prices are subject to significant price rises, hence the introduction of TaRTAM to protect them;
  • in France, TaRTAM and regulatory uncertainties discouraged new suppliers from entering the competitive market.

At this point, a new law on the organization of the French electricity market had to be passed.

On April 23, 2009, the European Union published Directive 2009/28/EC, which revised the order in which generation facilities are called onto the grid, giving priority to production from renewable energy sources, irrespective of their production cost.

A third “energy package” was issued on July 13, 2009:

  • regulation 713/2009 set up an Agency for the Cooperation of Energy Regulators (ACER) to help national regulatory authorities exercise and coordinate their regulatory tasks at European level and, where necessary, complement their actions;
  • Regulation 714/2009 on conditions for access to the network for cross-border exchanges in electricity;
  • Directive 2009/72/EC, concerning common rules for the internal market in electricity in the EU, repealed Directive 2003/54/EC.

This package introduced the unbundling of power generation, transmission network operation and supply to end customers and strengthened consumer rights on retail markets. It was the cornerstone of the implementation of the internal energy market.

Gradual liberalization

Successive decrees have gradually lowered the consumption threshold in France for access to the competitive market:

  • February 1999: eligibility of sites consuming more than 100 GWh;
  • June 2000: eligibility for all sites consuming more than 16 GWh (a market opening rate of more than 30%);
  • February 2003: any site consuming more than 7 GWh is eligible;
  • July 2004: eligibility for businesses and local authorities;
  • July 2007: eligibility for all consumers (including residential customers);
  • November 1, 2014: new method for calculating regulated tariffs;
  • January 1, 2016: end of regulated tariffs for customers with a contract power greater than 36 kVA.

New organization of the electricity market

On December 7, 2010, French law 2010-1488 was enacted, introducing a new organization for the electricity market, the main provisions of which:

  • introduce a transitional system of regulated access to historical nuclear electricity (ARENH), to encourage the development of competition with EDF. This obligation enables electricity suppliers who so request to supply end consumers in mainland France;
  • require each electricity supplier to have guaranteed supply capacity to meet the balance between production and consumption in mainland France. The capacity of a generation facility or consumption curtailment capacity is certified by a contract between the supplier and RTE. The capacity obligation mechanism takes into account the interconnection of the French market with other European markets;
  • introduce a new method for calculating regulated electricity sales tariffs;
  • set December 31, 2015 as the end date for regulated electricity tariffs for large and medium-sized businesses (green and yellow tariffs);
  • introduce a tax on final electricity consumption to be paid by suppliers to municipalities and départements.

The passage of this law, which came into force on December 8, 2010, put an end to the state aid investigation opened by the European Commission in 2007. TaRTAM was abolished in July 2011.

In view of the dispersal of existing texts and recent major amendments, Ordinance 2011-504 of May 9, 2011 ratified the creation of an Energy Code compiling all the articles still in force from the laws framing the electricity sector from 1906 to 2010, including Law 2010-1488.

Since then, the Code has undergone a number of changes on various subjects, such as ARENH, capacity guarantees, and the 2023 version now covers all energies (electricity, gas, hydro, oil and other liquid fuels, heating and cooling networks, hydrogen) as well as energy management and the development of renewable energies. In the decade from 2010 to 2020, it incorporated climate transition imperatives and, more recently, reduced dependence on foreign energy resources.

Finalizing integration into trans-European markets and networks - 2012

On October 26, 2012, the Treaty on the Functioning of the European Union (TFEU) was ratified, Article 4 of which stipulates that energy and trans-European energy networks are now a shared competence between the EU and its member states.

Since that date, the French electricity markets have been completely reorganized around the introduction of competition between producers and the freedom of consumers to choose their supplier, with network regulation organized at European Union level and market competition principles defined at EU level. As a result, the French electricity system has become intertwined with the European electricity system.

Impact of the 2020 health crisis

In March 2020, EDF and its competitors were confronted with the sharp drop in electricity demand caused by the containment measures applied in response to the COVID-19 pandemic and the resulting fall in wholesale electricity market prices.

On the EPEX SPOT wholesale market, on April 13, 2020, at 3 p.m., France still under health confinement experienced a negative price all day, and EDF had to grant its wholesale customers a negative electricity price peak of around -€75/MWh. This meant that electricity buyers were paid by sellers to take their electricity. Negative prices on the wholesale market are events that occur from time to time when there is an overproduction of electricity in Europe. When the spot price, even a positive one, falls below the ARENH price (e.g. to €42/MWh), EDF loses revenue, as non-contracted alternative suppliers switch to the EPEX SPOT market. Alternative suppliers who have signed supply contracts with EDF at the ARENH price must continue to buy at this price, which causes them additional costs.

In early 2020, alternative suppliers brought the COVID-19 health crisis before the Conseil d'Etat to obtain a better price. On April 17, 2020, the Conseil d'État rejected the application for interim relief lodged by two associations of energy suppliers, ruling that it had not been established that the losses suffered by the suppliers concerned would be “of such a magnitude as to jeopardize (...) their survival within a few months” and that “these losses would have such an effect within the time necessary for the competent judge to rule on the claims referred to him”.

TotalEnergies requested that the force majeure clause in its ARENH purchase contracts be invoked; EDF refused, considering the request “opportunistic” and pointing out that Total was paying dividends to its shareholders despite the health crisis. On May 20, 2020, the Paris Commercial Court orders EDF to stop opposing the suspension of the regulated access to historical nuclear electricity contract with TotalEnergies, pointing out that the ARENH contract refers to “neither the intrinsic solidity of the contractor nor its membership of a group deemed powerful”. EDF wishes to appeal “in order to obtain a ruling on the merits” (three other alternative suppliers have obtained the same ruling, including Gazel, owned by Czech Daniel Křetínský, freeing them from ARENH prices on grounds of force majeure).

As Alpiq, Gazel and TotalEnergies had suspended their contracts on the grounds that “the health crisis constituted a case of force majeure to suspend these contracts”, on June 2, 2020, EDF notified them of the termination of their nuclear power purchase contracts at the ARENH price, on the grounds of “suspension (...) beyond a period of two months”, in accordance with the clause provided for in the said contracts93. In November, 2020, EDF won its appeal against TotalEnergies.

Global energy crisis 2021-2022

Faced with a sharp rise in wholesale electricity prices, the government undertakes at the end of September 2021 to cap the increase in the regulated sales tariff (TRV) at 4%, whereas it would have been 35% if no government measure had been taken. He decided to reduce the main tax on electricity, the domestic consumption tax on electricity (TICFE), from €22.50/MWh to €50 cents, the minimum authorized by Brussels, at a cost of €8 billion to the State budget. It requires EDF to increase by 20 TWh the volume of nuclear electricity sold at reduced prices to its competitors, raising it exceptionally from 100 to 120 TWh. The measure is expected to cost EDF between €7.7 and €8.4 billion. EDF CEO Jean-Bernard Lévy sees it as “state aid in favor of [his] competitors”.

At the end of January 2022, all the group's unions called a strike to protest against these measures. They were opposed to the government's decision, announced on January 13, to oblige EDF to sell more nuclear electricity at low prices to its competitors, under the ARENH scheme. This decision obliges EDF to buy expensive electricity on the wholesale markets for 2022, which it will have to resell at a much lower rate (€46.20) to its competitors. The operation is expected to cost the company around €3 billion. It will also force it to moderate the increase applied to its own customers, which the company estimates will result in a €5 billion shortfall (€3 billion according to other sources).

On August 2, 2022, MPs and Senators, meeting in a joint commission to finalize the law on purchasing power, voted to freeze the ARENH ceiling at 120 TWh/year, and to raise the sale price to EDF's competitors to €49.5/MWh. This price had previously been €42/MWh and the ARENH ceiling 100 TWh/year, but an ARENH supplement of 20 TWh/year at a price of €46.20/MWh had been imposed on EDF at the start of 2022. However, the parliamentarians' decision was conditional on the agreement of the European Commission.

On January 21, 2024, Economy Minister Bruno Le Maire announced a partial restoration of the domestic final consumption tax on electricity (TICFE) from February 1, 2024. This tax was reduced at the end of 2021, as part of the tariff shield, from €32/MWh for individuals to the legal minimum allowed by European rules (€1/MWh for individuals and €0.50/MWh for businesses), at a budgetary cost of nine billion euros a year. This increases to €21/MWh, raising the average bill for residential customers on the basic tariff by 8.6%, and for households on the peak/off-peak tariff by 9.8%.

Market consolidation caused by the 2021-2022 energy crisis

The energy crisis of 2021-2022 led to a major restructuring of the market: many of EDF's competitors, destabilized by the sharp rise in electricity and gas prices, withdrew from the market. In October 2021, Leclerc Energie stopped selling its contracts, leaving its 150,000 customers to find a back-up supplier. In November 2021, Hydroption, one of the suppliers to the army and Paris City Hall, had its license withdrawn for selling supply contracts at prices it was unable to meet. In January 2022, the UK's Bulb and Denmark's Barry withdrew from the French market, and Planète Oui, which claims some 160,000 customers, went into receivership. The Casino Group's energy subsidiary, GreenYellow, announces to its customers that it is ending the sale of gas supply contracts through its e-commerce site Cdiscount, and may do the same for electricity supply.

At the end of August 2022, Olivier Challan Belval, the French energy ombudsman, noted a sharp squeeze in energy offers: only 40 offers were listed by his services, compared with around a hundred in the summer of 2021, and the number of suppliers had risen from around thirty to 18.

Faced with a sharp rise in electricity prices, Iberdrola is writing to its customers to encourage them to return to the regulated tariff in order to “avoid seeing their bill ‘double or triple’”, and the CRE is examining the often dubious practices of “alternative electricity operators in terms of tariffs and in their relations with their customers”.

In the fourth quarter of 2022, “incumbent” suppliers (EDF, Engie and local distribution companies) gained 337,000 new residential customers, while alternative suppliers (TotalEnergies, Vattenfall, ENI) lost 319,000. In total, 71% of residential customers will benefit from a regulated electricity sales tariff or a market offer from an incumbent supplier by the end of 2022, compared with 69% by the end of 2021. Incumbent suppliers have also gained 66,000 new business customer sites, while alternative suppliers will see their portfolio fall by 49,000 sites by 2022.

Reform of the European electricity market

Following the global energy crisis of 2021-2023 and the sharp rise in electricity prices it caused, several member states have called for reform of the European electricity market to decouple electricity prices from gas prices. The European Commission has pledged to present a proposal by the end of the first quarter of 2023. On January 12, 2023, Bruno Le Maire promised that the French government would “put all its political weight behind it”, and demanded that the reform be adopted “within six months”.

France recognizes that the operation of the short-term wholesale market, based on marginal cost, should be retained, as “marginal pricing maintains a good match between energy demand and the capacities available to produce”. However, he advocates reducing the relative weight of this marginal tariff in the final price of electricity, by creating, alongside the traditional wholesale market, long-term power purchase contracts capable of stabilizing prices and providing visibility. Such contracts could include direct power purchase agreements (PPAs) between producers and customers, and contracts for difference (CfDs), similar to those used for renewable energies, which the French government is considering extending to nuclear power.

A report commissioned by the French Energy Regulatory Commission (CRE) from eleven university economists from various countries was presented on March 8, 2023. It concludes that the current system of daily auctions remains “the best for deciding who is the cheapest producer”, that “even if we agree that a long-term market must emerge, it is important to retain liquidity. Short-term markets should not be dried up; they also bring transparency”. The report, which was also submitted to the European Commission, is skeptical about a European capacity market, which would be difficult to set up with countries with such different energy mixes.

Announced in July 2022 by the Prime Minister, the State's takeover bid for EDF shares ended on June 8, 2023. EDF once again became a state-owned company, but electricity generation and supply remained in the competitive arena.

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