ELCERTIFIKAT - En diskussion kring de svenska elcertifikatens rättsliga natur, ekonomiska värde samt möjlighet att ta i anspråk vid en utmätning -
1st of may 2003, a new energy system based on electricity certificates, was initiated in Sweden. The purpose with this system, is to stimulate an enlargement of energy production from renewable sources. The electricity system, ist built on that the producers of energy from renewable sources confer a electricity certificate from the government for every produced MW energy from renewable sources. The electricity certificate is supposed to be turned over and with that generate reciepts to the producers. Furthermore there is an obligation for the energyusers und energysuppliers, that means that the users and the suppliers every year the 1st of april got to have electricity certificates in proportion to their energy consumption during previous year. If the obligation isn´t fulfilled, a charge is to be paid to the government. A electricity certificate can consequently be said to be one from the government exhibited certificate of that a certain amount of energy from use of renewable sources has been produced. What kind of certificate is then the electricity certificates supposed to be?In the government bill 2002/03:40, the electricity certificate is said to constitute a financial instrument. After a closer analysis of this statement, it is shown that the prerequisits to be classified as a financial instrument, isn´t fulfilled, wherefore the electricity certificates can´t be considerd as financial instruments. The electricity certificate is rather to be considered as payment instruments, since the electricity certificates makes it possible for the energyproducers to achieve a value. The payment instrument the electricity certificate is ought to be, is an instruction. How has then the energyusers and suppliers been obliged to fulfil these from the government drawn instructions. The government has through chapter 4 i law about electricity certificates, the rigt to obliged energyusers and suppliers to pay an amount, i.e to do the energyusers and suppliers to the requested. The conduct can be compared to the right the government has in claiming taxes. What the government consequently can be said to do, is to obliged the energy users und suppliers to pay directly to the holder of the instructions. The economic content of this, is consequently that the government transfer their right to impose taxes to the producers of energy from renewable sources, so that they can assimilate an economic support. To consider the electricity certificates as payment instruments, implies however that what the government really does when it gives electricity certificates to energy producers, is to give a direct grant for production of energy from renewable sources. Such a grant is however to be considered as prohibited according to art. 87 Rometreaty, since it can lead to a distorted competition on the common market of energy. Since electricity certificates can´t be classified as payment instruments, neither a transfer of the right to impose taxes, since such a solution, legally contemplate, isn´t possible, the electricity certificates can´t be classfied as anything else then a new judicial phenomenon in swedish right.