Summary;Judgment — ECLI:EU:C:2022:272
Date: 2022-04-07
Language of the case: German
Court formation: Ninth Chamber
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-102/21 – 1 
Case C-102/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
18 February 2021 
Referring court: 
Administrative Court, Autonomous Section for the Province of 
Bolzano (Italy) 
Date of the decision to refer: 
9 February 2021 
Appellant: 
KW 
Defendant: 
Autonomous Province of Bolzano 
  
Subject matter of the main proceedings 
Compatibility with the internal market of aid for the construction of micro-
hydroelectric power plants granted in respect of mountain huts and hostels not 
connected to the electricity grid; Legality of the recovery of the aid by national 
authorities after the expiry of the aid scheme established under EU law 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU, in particular 
Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules 
for the application of Article 108 of the Treaty on the Functioning of the European 
Union (OJ 2015 L 248, p. 9) (‘Regulation [EU] 2015/1589’) 
Commission Decision of 25 July 2012 on the authorisation of State aid pursuant to 
Articles 107 and 108 TFEU, SA.32113 (10/N) (2013/C 1/02) (OJ 2013 C1, p. 7) 
(‘State aid decision SA.32113’) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-102/21 
 
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Questions referred for a preliminary ruling 
1. Did the aid authorised by Commission Decision SA.32113 (2010/N) of 
25 July 2012 to cover 80% of the costs of the construction of mini-
hydroelectric power plants for the generation of electrical energy for own 
consumption from renewable energy sources for the benefit of mountain 
huts and hostels in high alpine areas, for which connection to the electricity 
grid is not feasible without disproportionate effort in technical and financial 
terms, expire on 31 December 2016? 
2. If that question is answered in the affirmative: 
2.1 Is Article 20 of Regulation (EU) 2015/1589 to be interpreted as 
meaning that, in the case where aid is misused, the Commission must 
issue a recovery decision before the public authorities intervene? 
2.2 Is the abovementioned aid compatible with the internal market within 
the meaning of Article 107(3)(c) TFEU, since it serves to facilitate the 
development of certain economic areas, or is it liable to distort 
competition and affect trade between Member States? 
Provisions of EU law relied on 
Article 107(1) and (3)(c) and Article 108(1), (2) and (3) TFEU 
Article 1(a), (c), (f) and (g), Article 4(3), Article 9(3) and (4), Article 20 and 
recital 28 of Regulation (EU) 2015/1589 
Article 4(1), (2)(b) and (3) of Commission Regulation (EC) No 794/2004 of 
21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down 
detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, 
p. 1) 
Article 41(7)(a), (8) and (9) of Commission Regulation (EU) No 651/2014 of 
17 June 2014 declaring certain categories of aid compatible with the internal 
market in application of Articles 107 and 108 of the Treaty on the Functioning of 
the European Union (OJ 2014 L 187, p. 1) (General Block Exemption Regulation 
[GBER]; ‘Regulation [EU] No 651/2014’)  
Articles 3 and 6 of Commission Regulation (EU) No 1407/2013 of 18 December 
2013 on the application of Articles 107 and 108 of the Treaty on the Functioning 
of the European Union to de minimis aid (OJ 2013 L 352, p. 1) (‘Regulation [EU] 
No 1407/2013’) 
Paragraphs 6, 97 and 98 of State aid decision SA.32113 
AUTONOMOUS PROVINCE OF BOLZANO 
 
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Provisions of national law relied on 
Provincial Law of 7 July 2010, No 9 ‘Provisions concerning energy savings, 
renewable energy and climate protection’, published in the Official Gazette of the 
Region of 3 August 2010, No 31, in the version currently in force (‘Provincial 
Law No 9’)  
Resolution of the Provincial Government of 8 November 2010, No 1804, 
published in the Official Gazette of the Region of 13 November 2012, No 46 
(‘Provincial Government Resolution No 1804’) 
Facts and procedure 
1 The appellant (‘applicant’) owns properties that are not connected to the public 
electricity grid due to their remote location.  
2 Provincial Law No 9 introduced aid to cover 80% of the costs of constructing 
mini-hydroelectric power plants for the generation of electrical energy from 
renewable energy sources for the benefit of mountain huts and hostels for which 
connection to the electricity grid is not feasible without disproportionate effort in 
technical and financial terms. 
3 That aid scheme was approved by the European Commission (‘the Commission’) 
on 25 July 2012 by State aid decision SA.32113.  
4 On the basis of that aid scheme, the applicant applied to the competent authority 
of the defendant on 15 September 2017 for the granting of the maximum amount 
of aid for the construction of a hydroelectric power plant on her properties. The 
electricity generated was to be used exclusively for her own consumption. 
5 By decision of the competent authority, the applicant was granted aid of 
EUR 144 634 – corresponding to 80% of the eligible costs of EUR 180 792.48 – 
for the construction of a mini-hydroelectric power plant to supply her own 
electricity.  
6 Construction of the mini-hydroelectric power plant was completed on 
27 September 2018. Aid of EUR 140 970 was paid on 16 November 2018.  
7 On 27 January 2020, the competent authority partially revoked the aid granted. It 
stated that aid scheme SA.32113 had expired on 31 December 2016, the 
Provincial Government had amended the eligibility criteria and Regulation 
No 651/2014 had reduced the maximum amount from 80% to 65% of the eligible 
costs. Based on the new criteria, the eligible costs were set at EUR 174 241.68, 
and aid corresponding to 65% of those costs, that is to say, EUR 113 257.09, was 
calculated. On 14 February 2020, the applicant was requested to reimburse part of 
the aid, together with interest, in the total amount of EUR 27 946.12.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-102/21 
 
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8 On 15 June 2020, the applicant brought an appeal (‘action’) before the present 
administrative court seeking the annulment of the legal acts that adversely 
affected her, in particular the partial revocation and the request for repayment 
(‘contested legal acts’).  
9 In support of her action, the applicant relies on five pleas in law alleging, inter 
alia, the following, to the extent relevant to EU law:  
– The aid is not unlawful, as it does not constitute State aid within the meaning of 
Article 107(1) TFEU. The aid was granted to the applicant as a private person. 
No undertaking was favoured by the aid. A distortion of competition within the 
European Union is not possible, as the electricity generated is to be used solely 
for the applicant’s own supply.  
– The defendant infringed Articles 3 and 6 of Regulation (EU) No 1407/2013, 
since it did not verify whether the aid had been granted in accordance with the 
applicable regulation.  
– The aid is permissible under Article 107(3) TFEU. A notification procedure 
had not been necessary as the aid had been exempted under Regulation (EU) 
No 651/2014.  
– The provision of Article 2 of Regulation (EU) 2015/1589, according to which 
new aid is to be notified to the Commission, does not apply to existing aid, that 
is to say, to aid schemes and individual aid that have been authorised by the 
Commission or the Council. Existing aid that has already been authorised, such 
as that at issue in the present case, does not need to be either notified or 
authorised. In the present case, the Commission did not initiate a procedure 
pursuant to Article 22 of Regulation (EU) 2015/1589 and consequently did not 
have any objections to the aid. 
– The revocation is unlawful because the Commission has not issued a recovery 
decision and the administration was not authorised to classify the aid as 
unlawful without a decision by the Commission pursuant to Chapter III of 
Regulation (EU) 2015/1589.  
10 The defendant contends that the action should be dismissed.  
11 It takes the view that the aid at issue constitutes unlawful State aid because aid 
scheme SA.32113 expired on 31 December 2016 and therefore lacked a legal 
basis. The aid also infringed Regulation (EU) No 651/2014. It therefore had to be 
adapted to that regulation and reduced accordingly.  
Grounds for the request  
12 The success of the appeal is dependent on a decision of the Court of Justice of the 
European Union (‘the Court’) on the interpretation of the Treaties. 
AUTONOMOUS PROVINCE OF BOLZANO 
 
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13 The present Chamber considers it necessary to refer the questions set out above to 
the Court of Justice for a preliminary ruling under Article 267 TFEU for the 
reasons set out below, since they are decisive in this dispute as regards several of 
the applicant’s pleas in law.  
Provisions of EU law and national law 
14 The legal provisions relevant to the dispute are listed above in the sections 
‘Provisions of national law relied on’ and ‘Provisions of EU law relied on’. The 
following statements serve to supplement those provisions.  
15 Provincial Law No 9 provides that the Province of Alto Adige may grant aid 
covering up to 80% of the costs of the construction and expansion of installations 
for the generation of electrical energy from renewable energy sources. On that 
basis, it was decided by Provincial Government Resolution No 1804 that, for such 
installations, aid was to be granted for the construction and expansion of 
hydroelectric power plants for the benefit of mountain huts and hostels. 
Furthermore, the expenditure to be charged to the subsequent financial years was 
to be determined by the annual law on finance.  
16 The Commission approved the aid scheme described above in its State aid 
decision SA.32113. It is clear from that decision that the aid scheme had a total 
budget of EUR 187 million and an annual budget of EUR 32 million and was 
scheduled to run until 31 December 2016. According to the Commission’s 
statements, approximately half of the funds do not constitute State aid; the exact 
duration is explicitly not mentioned.  
17 The Commission decided not to raise any objections with regard, in particular, to 
the envisaged investment aid for hydroelectric power plants for mountain huts and 
hostels, since it constituted State aid compatible with the internal market to 
facilitate the development of certain economic activities or of certain economic 
areas within the meaning of Article 107(3)(c).  
18 It deemed the effects on trade between Member States of electricity generation not 
connected to the grid in remote areas to be a priori limited (paragraph 97 of State 
aid decision SA.32113).  
19 It considered that the scheme at hand was intended to offset a genuine territorial 
specificity and was objectively justified so as to efficiently address the lack of a 
reliable and efficient electricity supply in the remote areas of Alto Adige. 
Accordingly, the Commission concluded that the aid in favour of the 
electrification of rural and alpine areas of Alto Adige results in a positive overall 
effect, as it helps to ensure the right of customers, namely households and small 
enterprises, to be supplied with electricity in a reliable and environmentally 
friendly manner (paragraph 98 of State aid decision SA.32113). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-102/21 
 
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20 Pursuant to Article 41 (‘Investment aid for the promotion of energy from 
renewable sources’) of Regulation (EU) No 651/2014, investment aid for the 
promotion of renewable energy sources is to be compatible with the internal 
market and is to be exempted from the notification requirement, provided that it 
fulfils the further conditions laid down in that provision. 
The questions referred 
21 The first plea in law raises the legal question of whether the aid granted to cover 
80% of costs is liable to distort competition and affect trade between Member 
States. 
22 Should that question be answered in the negative, this would lead to the 
annulment of the contested acts. 
23 In addition, seven other similar cases, which are based on the same legal question, 
are pending before this court. 
24 The other pleas in law raise the legal question of whether the aid in the present 
case is existing aid and whether the public authority was entitled to decide on this 
question itself or whether it should have referred that decision to the Commission. 
25 In that context, the present Chamber has doubts as to the actual expiry of aid 
scheme SA.32113 approved by the Commission. 
26 A time limit for the scheme is not explicitly specified in aid decision SA.32113 
itself. It is only apparent from its publication in extract in the Official Journal of 
the European Union of 4 January 2013 that the aid scheme provided for by the 
Provincial Law was intended to run until 31 December 2016. 
27 Provincial Law No 9 provided that the necessary funds for contributions to the 
construction of mini-hydroelectric power plants for mountain huts and hostels for 
which connection to the electricity grid is not feasible without disproportionate 
effort in technical and financial terms is to be determined annually by the 
respective law on finance. 
28 This was also done after 2016, and corresponding amounts were earmarked for 
those contributions in the provincial budget for 2017 and 2018. 
29 In State aid decision SA.32113, the Commission had regarded the objective of 
Provincial Law No 9 as compatible with the internal market with regard to 
mountain huts and hostels not connected to the electricity grid. 
30 Accordingly, the question arises as to whether the aid scheme concerning the 
electrification of mountain huts and hostels by means of renewable energy 
sources, which was declared by the Commission to be compatible with the 
internal market within the meaning of Article 107(3) TFEU, expired on 
31 December 2016.  
AUTONOMOUS PROVINCE OF BOLZANO 
 
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31 If the above question were answered in the negative, the aid granted would 
constitute existing aid, with the consequence that the contested reduction of the 
aid would be unlawful.  
32 If the question were answered in the affirmative, on the other hand, it would 
constitute aid granted after the period approved by the Commission. Even if there 
is no infringement of conditions and obligations imposed by the Commission, the 
aid would have been granted improperly. 
33 In such a case, it would be necessary to assess whether Article 20 of Regulation 
(EU) 2015/1589 is to be interpreted as meaning that, in the case where aid is 
granted improperly, the Commission must issue a recovery decision before the 
public authority intervenes. 
34 Furthermore, it is necessary to assess whether that aid continues to be compatible 
with the internal market within the meaning of Article 107(3)(c), since it serves to 
facilitate the development of certain economic areas – as found by the 
Commission in State aid decision SA.32113.