# C_2008223EN.01000402.xml

| 30.8.2008 | EN | Official Journal of the European Union | C 223/4 |
| --- | --- | --- | --- |

30.8.2008

EN

Official Journal of the European Union

C 223/4

---

Judgment of the Court (Third Chamber) of 17 July 2008 (reference for a preliminary ruling from the Rechtbank Groningen — Netherlands) — Essent Netwerk Noord BV, Nederlands Elektriciteit Administratiekantoor BV, Aluminium Delfzijl BV v Aluminium Delfzijl BV, Staat der Nederlanden, Nederlands Elektriciteit Administratiekantoor BV, Saranne BV

(Case C-206/06) (1)

1

(Internal market in electricity - National legislation permitting the levy of a surcharge on the price for electricity transmission in favour of a statutorily-designated company which is required to pay stranded costs - Charges having equivalent effect to customs duties - Discriminatory internal taxation - Aid granted by the Member States)

(2008/C 223/06)

Language of the case: Dutch

Referring court

Rechtbank Groningen

Parties to the main proceedings

Applicants: Essent Netwerk Noord BV, Nederlands Elektriciteit Administratiekantoor BV, Aluminium Delfzijl BV

Applicants:

Defendants: Aluminium Delfzijl BV, Staat der Nederlanden, Nederlands Elektriciteit Administratiekantoor BV, Saranne BV

Defendants:

Re:

Preliminary ruling — Rechtbank Groningen — Interpretation of Articles 25 EC, 87(1) EC and 90 EC — National legislation establishing a surcharge on the price of electricity and payable, during a transitional period, to the net operator by consumers established in the Netherlands — Obligation on the net operator to pay that surcharge to a statutorily designated undertaking of the national electricity generators for the purpose of defraying a sum representing the amount of obligations incurred and investments made by that undertaking prior to liberalisation of the market — Payment by that undertaking of any surplus to the competent ministry

Operative part of the judgment

| 1. | Article 25 EC is to be construed as precluding a statutory rule under which domestic purchasers of electricity are required to pay to their net operator a price surcharge on the amounts of domestic and imported electricity which are transmitted to them, where that surcharge is to be paid by that net operator to a company designated by the legislature, with that company being the joint subsidiary of the four domestic generating undertakings and having previously managed the costs of all the electricity generated and imported, and where that surcharge is to be used in its entirety to pay non-market-compatible costs for which that company is personally responsible, with the result that the sums received by that company wholly offset the burden borne by the domestic electricity transmitted.
  The same applies where the national electricity generating undertakings are required to bear those costs and where, by reason of existing agreements, by the payment of a purchase price for electricity produced in the Member State, by the payment of dividends to the various domestic electricity generating undertakings of which the designated company is the subsidiary or by any other means, the advantage which that price surcharge constitutes could be passed on in its entirety by the designated company to the domestic electricity generating undertakings.
  Article 90 EC is to be construed as meaning that it precludes such a statutory rule where the revenue from the charge levied on the electricity transmitted is used only in part to pay non-market-compatible costs, that is to say where the amount levied by the designated company only partly offsets the burden borne by the national electricity transmitted. |
| --- | --- |

1.

Article 25 EC is to be construed as precluding a statutory rule under which domestic purchasers of electricity are required to pay to their net operator a price surcharge on the amounts of domestic and imported electricity which are transmitted to them, where that surcharge is to be paid by that net operator to a company designated by the legislature, with that company being the joint subsidiary of the four domestic generating undertakings and having previously managed the costs of all the electricity generated and imported, and where that surcharge is to be used in its entirety to pay non-market-compatible costs for which that company is personally responsible, with the result that the sums received by that company wholly offset the burden borne by the domestic electricity transmitted.

The same applies where the national electricity generating undertakings are required to bear those costs and where, by reason of existing agreements, by the payment of a purchase price for electricity produced in the Member State, by the payment of dividends to the various domestic electricity generating undertakings of which the designated company is the subsidiary or by any other means, the advantage which that price surcharge constitutes could be passed on in its entirety by the designated company to the domestic electricity generating undertakings.

Article 90 EC is to be construed as meaning that it precludes such a statutory rule where the revenue from the charge levied on the electricity transmitted is used only in part to pay non-market-compatible costs, that is to say where the amount levied by the designated company only partly offsets the burden borne by the national electricity transmitted.

| 2. | Article 87 EC must be construed as meaning that the amounts paid to the designated company under Article 9 of the Transitional Law on the electricity generating sector (Overgangswet Elektriciteitsproductiesector) of 21 December 2000 constitute ‘State aid’ for the purposes of that provision of the EC Treaty in so far as they represent an economic advantage and not compensation for the services provided by the designated company in order to discharge public service obligations. |
| --- | --- |

2.

Article 87 EC must be construed as meaning that the amounts paid to the designated company under Article 9 of the Transitional Law on the electricity generating sector (Overgangswet Elektriciteitsproductiesector) of 21 December 2000 constitute ‘State aid’ for the purposes of that provision of the EC Treaty in so far as they represent an economic advantage and not compensation for the services provided by the designated company in order to discharge public service obligations.

---

(1)  OJ C 178, 29.7.2006.

1

---