Opinion of the Advocate General — ECLI:EU:C:2004:675
Date: 2004-10-28
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Energy;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. State aid — Meaning — Measures creating different treatment of undertakings in relation to charges connected with the nature and general scheme of the system of charges in question — Excluded (Art. 87 EC) 2. State aid — Meaning — Method by which aid is financed — Included — Condition — Method of financing forming an integral part of the aid measure — Hypothecation of special tax to aid 3. Approximation of laws — Measures directed at the establishment and functioning of the internal market in electricity — Directive 96/92 — Rule of non-discriminatory access to the national electricity transmission system — Adoption by a Member State of a measure imposing an increased charge for a transitional period only on certain electricity generation and distribution undertakings for access to and use of that system to offset the advantage created for those undertakings by the liberalisation of the market — Whether permissible (European Parliament and Council Directive 96/92, Arts 7(5), 8(2), and 16) 1. The concept of State aid within the meaning of Article 87(1) EC is wider than that of a subsidy because it embraces not only positive benefits, such as the subsidies themselves, but also measures which, in various forms, mitigate the normal burdens on the budget of an undertaking. However, the concept of aid does not encompass measures creating different treatment of undertakings in relation to charges where that difference is attributable to the nature and general scheme of the system of charges in question. That is the case with a measure which imposes an increased charge for a transitional period for access to and use of the national electricity transmission system only on undertakings generating and distributing electricity from hydroelectric or geothermal installations to offset the advantage created for those undertakings, during the transitional period, by the liberalisation of the market in electricity following the implementation of Directive 96/92 concerning common rules for the internal market in electricity. That different treatment is not therefore per se State aid within the meaning of Article 87 EC. (see paras 38-39, 43, operative part 1) 2. The method by which an aid is financed may render the entire aid scheme incompatible with the common market. Therefore, the aid cannot be considered separately from the effects of its method of financing. On the contrary, consideration of an aid measure by the Commission must necessarily also take into account the method of financing the aid where that method forms an integral part of the measure. However, for a special tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid measure under the relevant national rules, in the sense that the revenue from the tax is necessarily allocated for the financing of the aid. It is only in the event of such hypothecation that the revenue from the special tax has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of the aid with the common market. It follows that if there is hypothecation of the increased charge for access to and use of the national electricity transmission system to a national scheme of aid, in the sense that the revenue from the increase is necessarily allocated for the financing of the aid, that increase is an integral part of that scheme and must therefore be considered together with the latter. (see paras 45-47, operative part 1) 3. Article 7(5), Article 8(2), and Article 16 of Directive 96/92 concerning common rules for the internal market in electricity, like the general principle of non-discrimination of which they are specific applications, preclude different treatment of comparable situations and like treatment of different situations. The rule of non-discriminatory access to the national electricity transmission system laid down in Directive 96/92 does not, however, preclude a Member State from adopting a measure which imposes an increased charge for a transitional period for access to and use of that system only on certain electricity generation and distribution undertakings to offset the advantage created for those undertakings, during the transitional period, by the altered legal framework following the liberalisation of the market in electricity as a result of the implementation of that directive. Such a measure treats differently situations which are not comparable. However, it is a matter for the national court to satisfy itself that the increased charge does not go beyond what is necessary to offset that advantage. (see paras 56-60, operative part 2)