Large companies benefiting from the capped energy prices have already submitted their first assessment of excessive economic benefit under Regulation No. 298/2022 Coll., on the determination of electricity and gas prices in an exceptional market situation and on the determination of the related maximum permissible range of customer economic benefit (“the Regulation”). Now, after the end of the second quarter, the second round awaits them. In the meantime, the government proceeded again to amending the regulation, focusing in particular on places that may have caused difficulties in previous practice.

The existing Temporary Crisis Framework, which guides State energy support, has been replaced by the European Commission with effect from 9 March 2023 by the Temporary Crisis and Transition Framework for State Aid measures to support the economy following Russia’s aggression against Ukraine (“TCTF”). In order to bring the regulation in line with the TCTF, the government has modified the definition of EBITDA indicator, or “adjusted profit / loss” as defined in the regulation. The pre-tax result is newly increased by value adjustments in the operating area and interest and similar costs and decreased by provisions for fixed assets and inventories.

Section 8a(7) of the Regulation regulates the way of reflecting the amount of other aid, which has been drawn by the large undertaking in the relevant period, in the value of the maximum allowable financial advantage. The method of reflecting other aid drawn by a large enterprise already from 2022 (or in the period from 1 February 2022 to the end of 2023) and aid drawn by a large enterprise only in 2023 to cover the costs of purchasing electricity, gas and heat energy is newly regulated separately. This entails a change to Annex 13, where these two sources of other support are reflected in separate columns.

Another question was the application of the limit of the permissible economic benefit in the case where the company from a group of entities fulfilled the material conditions for the purchase of electricity or gas at the set price, but the supply of electricity or gas at the set price did not actually take place. The Government has specified here that the determination of the amount of the group limit on the permissible economic benefit for all members of a given group of persons may be influenced only by those members, who have actually obtained or are obtaining some property benefit by taking electricity or gas at a specified price.

Another significant change is the option to apply for the application of a fixed price of electricity or gas even if the report on the assessment of the occurrence of excessive economic benefit is submitted after the deadline set by the regulation. The original regulation had de facto excluded this possibility, as it linked the customer’s declaration requesting the capping of energy prices to the submission of an assessment of excessive economic benefit. Those who missed the deadline for submitting the assessment could not even request a price cap for the next quarter.

A new §8da has been added to the regulation, which allows for the correction of facts or data in the report on the assessment of the occurrence of excessive economic benefit. The deadline for correction will be the end of the month following the month, in which the assessment is made at the latest.

Please note that the second quarter assessment also needs to be submitted by companies which, although they are no longer benefitting from the capped prices, have already accrued an excessive economic benefit during the first quarter.

Author: Veronika Odrobinová, Olga Králíčková