Opinion of the Advocate General — ECLI:EU:C:2000:585
Date: 2000-10-26
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Preliminary rulings — Jurisdiction of the Court — Limits — Obviously irrelevant 
questions and hypothetical questions in a context which precludes any useful 
answer — Questions not related to the purpose of the main proceedings 
(EC Treaty, Art. 177 (now Art. 234 EC» 
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SUMMARY — CASE C-379/98 
2. State aid — Meaning — Advantage granted to producers of electricity from renew­
able energy sources, resulting from the statutory obligation imposed on private 
electricity supply undertakings to buy their production at a minimum price higher than 
its value — Advantage granted without transfer of public resources •—• Excluded 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
3. State aid — Treaty provisions — Scope — Relationship between Article 92 of the 
Treaty (now, after amendment, Article 87 EC) and the second paragraph of Article 5 
of the Treaty (now the second paragraph of Article 10 EC) 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Article 5, second para, 
(now Art. 10, second para., EC)) 
4. Free movement of goods — Quantitative restrictions — Measures having equivalent 
effect — Price systems — Legislation requiring private electricity supply undertakings 
to purchase, at a minimum price higher than its value, electricity produced in their 
supply area from renewable energy sources — Whether permissible 
(EC Treaty, Art. 30 (now, after amendment, Art. 28 EC)) 
1. In the context of the cooperation 
between the Court of Justice and the 
national courts provided for by Arti­
cle 177 of the Treaty (now Article 234 
EC), it is solely for the national court 
before which the dispute has been 
brought, and which must assume 
responsibility for the subsequent judi­
cial decision, to determine in the light 
of the particular circumstances of the 
case both the need for a preliminary 
ruling in order to enable it to deliver 
judgment and the relevance of the 
questions which it submits to the 
Court. Consequently, where the ques­
tions submitted by the national court 
concern the interpretation of Commu­
nity law, the Court of Justice is, in 
principle, bound to give a ruling. 
Nevertheless, the Court may in excep­
tional circumstances examine the con­
ditions in which the case was referred 
to it by the national court, in order to 
assess whether it has jurisdiction. The 
Court may refuse to rule on a question 
referred for a preliminary ruling by a 
national court only where it is quite 
obvious that the interpretation of Com­
munity law that is sought bears no 
relation to the actual facts of the main 
action or its purpose, where the pro­
blem is hypothetical, or where the 
Court does not have before it the 
factual or legal material necessary to 
give a useful answer to the questions 
submitted to it. 
(see paras 38-39) 
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PREUSSENELEKTRA 
2. Only advantages granted directly or 
indirectly through State resources are 
to be considered aid within the mean­
ing of Article 92(1) of the Treaty (now, 
after amendment, Article 87(1) EC). 
The distinction made in that provision 
between 'aid granted by a Member 
State' and aid granted 'through State 
resources' does not signify that all 
advantages granted by a State, whether 
financed through State resources or 
not, constitute aid but is intended 
merely to bring within that definition 
both advantages which are granted 
directly by the State and those granted 
by a public or private body designated 
or established by that State. 
Therefore, statutory provisions of a 
Member State which, first, require 
private electricity supply undertakings 
to purchase electricity produced in 
their area of supply from renewable 
energy sources at minimum prices 
higher than the real economic value 
of that type of electricity, and, second, 
distribute the financial burden resulting 
from that obligation between those 
electricity supply undertakings and 
upstream private electricity network 
operators do not constitute State aid 
within the meaning of Article 92(1) of 
the EC Treaty. 
(see para. 58 and 
operative part 1) 
3. Article 92 of the Treaty (now, after 
amendment, Article 87 EC) is in itself 
sufficient to prohibit the conduct by 
States referred to therein and Article 5 
of the Treaty (now Article 10 EC), the 
second paragraph of which provides 
that Member States are to abstain from 
any measure which could jeopardise 
the attainment of the objectives of the 
Treaty, cannot be used to extend the 
scope of Article 92 to conduct by States 
that does not fall within it, such as 
support measures decided upon by the 
State but financed by private under­
takings. 
(see paras 63, 65) 
4. In the current state of Community law 
concerning the electricity market, stat­
utory provisions of a Member State 
which, first, require private electricity 
supply undertakings to purchase elec­
tricity produced in their area of supply 
from renewable energy sources at mini­
mum prices higher than the real eco­
nomic value of that type of electricity, 
and, second, distribute the financial 
burden resulting from that obligation 
between those electricity supply under­
takings and upstream private electricity 
network operators are not incompati­
ble with Article 30 of the EC Treaty 
(now, after amendment, Article 28 
EC), such provisions being useful for 
protecting the environment in so far as 
the use of renewable energy sources 
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SUMMARY — CASE C-379/98 
which they are intended to promote 
contributes to the reduction in emis­
sions of greenhouse gases which are 
amongst the main causes of climate 
change which the European Commu­
nity and its Member States have 
pledged to combat. 
(see paras 73, 81 and 
operative part, 1-2) 
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