62021CJ0795
JUDGMENT OF THE COURT (Third Chamber)
26 September 2024 (
*1
)
(Appeal – State aid – Aid scheme implemented by the Federal Republic of Germany in favour of large electricity consumers – Exemption from network charges in 2012 and 2013 – Decision declaring the aid scheme incompatible with the internal market – Action for annulment – Time limit for bringing proceedings – Admissibility – Article 107(1) TFEU – Concept of ‘State aid’ – State resources – Parafiscal charge or other compulsory surcharges)
In Joined Cases C‑795/21 P and C‑796/21 P,
TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, lodged on 16 December 2021,
WEPA Hygieneprodukte GmbH, established in Arnsberg (Germany),
WEPA Deutschland GmbH & Co. KG, formerly Wepa Leuna and Wepa Papierfabrik Sachsen, established in Arnsberg,
represented by H. Janssen, D. Salm and A. Vallone, Rechtsanwälte,
appellants in Case C‑795/21 P,
the other parties to the proceedings being:
European Commission, represented by K. Herrmann, C. Kovács and T. Maxian Rusche, acting as Agents, and by H. Heinrich, Rechtsanwalt,
defendant at first instance,
Federal Republic of Germany, represented by J. Möller and R. Kanitz, acting as Agents,
intervener at first instance,
and
Federal Republic of Germany, represented by J. Möller and R. Kanitz, acting as Agents,
appellant in Case C‑796/21 P,
the other parties to the proceedings being:
WEPA Hygieneprodukte GmbH, established in Arnsberg,
WEPA Deutschland GmbH & Co. KG, formerly Wepa Leuna and Wepa Papierfabrik Sachsen, established in Arnsberg,
represented by H. Janssen, D. Salm and A. Vallone, Rechtsanwälte,
applicants at first instance,
European
Commission, represented by K. Herrmann, C. Kovács and T. Maxian Rusche, acting as Agents,
defendant at first instance,
THE COURT (Third Chamber),
composed of K. Jürimäe (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Third Chamber, N. Piçarra, N. Jääskinen and M. Gavalec, Judges,
Advocate General: L. Medina,
Registrar: D. Dittert, Head of Unit,
having regard to the written procedure and further to the hearing on 28 June 2023,
after hearing the Opinion of the Advocate General at the sitting on 9 November 2023,
gives the following
Judgment
1
By their appeal in Case C‑795/21 P, WEPA Hygieneprodukte GmbH and WEPA Deutschland GmbH & Co. KG (together, ‘the WEPA companies’) ask the Court of Justice to set aside the judgment of the General Court of the European Union of 6 October 2021, Wepa Hygieneprodukte and Others v Commission (T‑238/19, EU:T:2021:648; ‘the judgment under appeal’), by which the General Court dismissed their action for annulment of Commission Decision (EU) 2019/56 of 28 May 2018 on aid scheme SA.34045 (2013/c) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 StromNEV (OJ 2019 L 14, p. 1; ‘the decision at issue’).
2
By its appeal in Case C‑796/21 P, the Federal Republic of Germany asks the Court to set aside the judgment under appeal.
3
By its cross-appeals, brought in Cases C‑795/21 P and C‑796/21 P, the European Commission also asks the Court to set aside the judgment under appeal.
Legal context
4
Recital 39 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9) states:
‘In the interests of transparency and legal certainty, it is appropriate to give public information on Commission decisions while, at the same time, maintaining the principle that decisions in State aid cases are addressed to the Member State concerned. It is therefore appropriate to publish all decisions which might affect the interests of interested parties either in full or in a summary form or to make copies of such decisions available to interested parties, where they have not been published or where they have not been published in full.’
5
Article 1(h) of that regulation provides:
‘For the purposes of this Regulation, the following definitions shall apply:
…
(h)
“interested party” means any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations.’
6
Article 32 of that regulation, entitled ‘Publication of decisions’, provides, in paragraph 3 thereof:
‘The Commission shall publish in the Official Journal of the European Union the decisions which it takes pursuant to Article 8(1) and (2) and Article 9.’
Background to the dispute and the decision at issue
7
The background to the dispute, as set out in paragraphs 1 to 22 of the judgment under appeal, may be summarised as follows.
The legislative and regulatory measures at issue
The system of network charges prior to the introduction of the measures at issue
8
Paragraph 21 of the Energiewirtschaftsgesetz (Law on the protection of the energy supply), as amended by the Gesetz zur Neuregelung energiewirtschaftsrechtlicher Vorschriften (Law reforming the provisions on the energy supply) of 26 July 2011 (BGBl. 2011 I, p. 1554), and prior to the amendments made by the Gesetz zur Weiterentwicklung des Strommarktes (Law on the development of the electricity market) of 26 July 2016 (BGBl. 2016 I, p. 1786; ‘the 2011 EnWG’), provided, inter alia, that network charges must be reasonable, non-discriminatory, transparent and calculated on the basis of the costs of an efficient operation of the network.
9
Paragraph 24 of the 2011 EnWG empowered the German Federal Government to lay down, by means of regulations, detailed provisions concerning, first, the definition of the general methodology for calculating network charges and, second, the regulation of atypical network use and the conditions under which the regulatory authority may authorise or prohibit individual network charges.
10
Paragraph 17 of the Stromnetzentgeltverordnung (Federal Regulation on network charges) of 25 July 2005 (BGBl. 2005 I, p. 2225; ‘the 2005 StromNEV Regulation’), defines the calculation methodology to be used by network operators in order to determine the general charges. This involves a two-step methodology that consists, first of all, in determining the various annual cost components of all networks and, next, in calculating the general charges on the basis of the total annual network costs.
11
The determination of the general charges takes into account the following two factors, namely the ‘simultaneity function’, which expresses the probability that the individual consumption of a user contributes to the annual peak load of the network level concerned, and the maximum revenue level per operator, as set by the Bundesnetzagentur (Federal Network Agency, Germany; ‘the BNetzA’) on the basis of benchmarking with other network operators, aimed at preventing costs resulting from inefficiencies from being recovered through network charges.
12
Paragraph 19 of the 2005 StromNEV Regulation provides for individual charges for categories of users whose consumption and load profiles are very different from those of other users (‘atypical users’). Those charges take into account, in accordance with the principle that network charges reflect the costs of the network, the contribution of those atypical users to reducing or preventing an increase in those costs.
13
In that regard, Paragraph 19(2) of the 2005 StromNEV Regulation establishes individual charges for the following two categories of atypical users:
–
users whose peak load contribution may differ significantly from the simultaneous annual peak load of all other users connected to the same network level, that is to say, users who systematically consume electricity outside peak times (‘non-peak consumers’); and
–
users whose annual electricity consumption represents at least 7000 hours of use and more than 10 gigawatt hours (‘baseload consumers’).
14
Until its amendment by the 2011 EnWG, the 2005 StromNEV Regulation provided that non-peak consumers and baseload consumers were to be subject to individual charges which were calculated according to the ‘physical path methodology’ devised by the BNetzA. That methodology took account of the network costs caused by the non-peak consumers and baseload consumers, with a minimum charge of at least 20% of the published general charges (‘the minimum charge’). That minimum charge guaranteed remuneration for the operation of the network to which those consumers were connected in the event that the individual charges calculated using the physical path methodology were lower than that minimum charge or close to zero.
The measures at issue
15
In accordance with the second and third sentences of Paragraph 19(2) of the 2005 StromNEV Regulation, as amended by the 2011 EnWG, as of 1 January 2011, the date of the retroactive application of that provision, the individual charges for baseload consumers were abolished and replaced by a full exemption from network charges (‘the exemption at issue’), granted by way of an authorisation from the competent regulatory authority, namely the BNetzA or the regulatory authority of the Land concerned. The cost of that exemption was borne by the transmission system operators or the distribution system operators depending on the network level to which the beneficiaries were connected.
16
Under the sixth and seventh sentences of Paragraph 19(2) of the 2005 StromNEV Regulation, as amended by the 2011 EnWG, the transmission system operators were required to compensate the distribution system operators for losses in revenue resulting from the exemption at issue and had to offset among themselves the costs of that exemption by means of a financial offset under Paragraph 9 of the Kraft-Wärme-Kopplungsgesetz (Law on combined heat and power generation) of 19 March 2002 (BGBl. 2002 I, p. 1092), in such a way that each of them bore the same financial burden in proportion to the quantity of electricity supplied to the end users connected to their respective network.
17
From 2012, the decision of the BNetzA of 14 December 2011 (BK8-11-024; ‘the 2011 BNetzA decision’) introduced a financing mechanism. Under that mechanism, the distribution system operators collected from end users or electricity suppliers a surcharge (‘the surcharge at issue’) the amount of which was transferred to the transmission system operators in order to offset the loss in revenue resulting from the exemption at issue.
18
The amount of the surcharge at issue was calculated each year in advance by the transmission system operators, using a methodology established by the BNetzA. The amount in respect of 2012, the first year in which the mechanism was implemented, was set directly by the BNetzA.
19
Those provisions did not apply to the costs of the exemption at issue in respect of 2011, and therefore each transmission system operator and distribution system operator had to bear the losses relating to that exemption in respect of that year.
The system of network charges subsequent to the measures at issue
20
During the administrative procedure which led to the decision at issue, the exemption at issue was first declared null and void by judicial decisions of the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany) of 8 May 2013 and of the Bundesgerichtshof (Federal Court of Justice, Germany) of 6 October 2015. That exemption was then repealed, with effect from 1 January 2014, by the 2005 StromNEV Regulation, as amended by the Verordnung zur Änderung von Verordnungen auf dem Gebiet des Energiewirtschaftsrechts (Regulation amending energy regulations) of 14 August 2013 (BGBl. 2013 I, p. 3250) (‘the 2013 StromNEV Regulation’). The 2013 StromNEV Regulation reintroduced, for the future, individual charges calculated using the physical path methodology, with the application, instead of the minimum charge, of flat-rate charges amounting to 10%, 15% and 20% of the general charges, based on electricity consumption (7000, 7500 and 8000 hours of annual network usage, respectively).
21
The 2013 StromNEV Regulation introduced a transitional scheme, in force with effect from 22 August 2013 and applicable retroactively to baseload consumers which had not yet benefited from the exemption at issue in respect of 2012 and 2013. Instead of the individual charges calculated using the physical path methodology and the minimum charge, that scheme provided exclusively for the application of those flat-rate charges to those consumers.
The administrative procedure and the decision at issue
22
Following a number of complaints, on 4 May 2013 the Commission published its decision to initiate the procedure under Article 108(2) TFEU concerning the aid scheme based on the measures at issue (OJ 2013 C 128, p. 43).
23
Following a procedure during which the Federal Republic of Germany and other interested parties submitted their comments, the Commission adopted the decision at issue on 28 May 2018.
24
By that decision, the Commission concluded that, during the period from 1 January 2012 to 31 December 2013, the Federal Republic of Germany had unlawfully granted State aid in the form of the exemption at issue.
25
More specifically, the Commission found that the amount of the State aid corresponded to the network costs caused by the exempted baseload consumers in 2012 and 2013 or, where those costs amounted to less than the minimum charge, to that minimum charge.
26
In addition, the Commission found that the aid in question was incompatible with the internal market, since it did not meet the conditions of any of the derogations provided for in Article 107(2) and (3) TFEU and could not be considered to be compatible for any other reason.
27
The Commission therefore decided as follows:
–
the exemption at issue constituted State aid within the meaning of Article 107(1) TFEU in so far as baseload consumers had been exempted from paying network charges corresponding to the network costs caused by them or from paying the minimum charge where those network costs amounted to less than that charge;
–
the aid in question had been put into effect by the Federal Republic of Germany in breach of Article 108(3) TFEU and was incompatible with the internal market;
–
the individual aid granted under the scheme in question did not constitute State aid if, at the time it was granted, it fulfilled the conditions laid down by a ‘de minimis’ aid regulation adopted pursuant to Article 2 of Council Regulation (EC) No 994/98 of 7 May 1998 on the application of Articles [107] and [108 TFEU] to certain categories of horizontal State aid (OJ 1998 L 142, p. 1); and
–
the Federal Republic of Germany was required, first, to recover from the beneficiaries the aid that was incompatible with the internal market, granted under the aid scheme in question, including interest, and, second, to cancel all outstanding payments of aid under that scheme with effect from the date of the adoption of the decision at issue.
The action before the General Court and the judgment under appeal
28
By application lodged at the Registry of the General Court on 9 April 2019, the WEPA companies brought an action for annulment of the decision at issue.
29
By decision of the President of the Sixth Chamber of the General Court of 30 August 2019, the Federal Republic of Germany was granted leave to intervene in support of the form of order sought by those companies, in accordance with that Member State’s request.
30
In support of their action, the WEPA companies put forward a single plea in law, alleging that there was no State aid within the meaning of Article 107(1) TFEU in so far as the exemption at issue was not financed through State resources.
31
By the judgment under appeal, the General Court declared the action admissible, then it rejected that plea and, consequently, dismissed the action for annulment in its entirety.
Procedure before the Court and forms of order sought
32
By their appeal in Case C‑795/21 P, the WEPA companies claim that the Court should:
–
set aside the judgment under appeal;
–
annul the decision at issue or, in the alternative, refer the case back to the General Court; and
–
order the Commission to pay the costs incurred before the General Court and the Court of Justice.
33
The Federal Republic of Germany contends that the Court should uphold the appeal in Case C‑795/21 P and order the Commission to pay the costs.
34
The Commission contends that the Court should dismiss the appeal in Case C‑795/21 P and order the WEPA companies to pay the costs.
35
By its appeal in Case C‑796/21 P, the Federal Republic of Germany claims that the Court should:
–
set aside the judgment under appeal in so far as it dismissed the action for annulment as unfounded;
–
annul the decision at issue; and
–
order the Commission to pay the costs incurred before the General Court and the Court of Justice.
36
The WEPA companies contend that the Court should uphold the appeal in Case C‑796/21 P.
37
The Commission contends that the Court should dismiss the appeal in Case C‑796/21 P and order the Federal Republic of Germany to pay the costs.
38
By its cross-appeals in Cases C‑795/21 P and C‑796/21 P, the Commission claims that the Court should:
–
set aside the judgment under appeal;
–
declare the action for annulment to be inadmissible;
–
in Case C‑795/21 P, order the WEPA companies to pay the costs incurred before the Court of Justice and the General Court; and
–
in Case C‑796/21 P, order the Federal Republic of Germany and the WEPA companies to pay the costs incurred, respectively, before the Court of Justice and before the General Court.
39
The WEPA companies and the Federal Republic of Germany contend that the cross-appeals should be dismissed and that the Commission should be ordered to pay the costs.
40
By decision of the President of the Court of 18 April 2023, Cases C‑795/21 P and C‑796/21 P were joined for the purposes of the oral procedure and the judgment.
The cross-appeals
41
The cross-appeals lodged by the Commission seek to challenge the admissibility of the action at first instance, which is a preliminary issue as far as the substantive issues raised in the main appeals are concerned. The cross-appeals should therefore be examined first (see, to that effect, judgment of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:979, paragraph 43).
42
In support of its cross-appeals, the Commission puts forward two grounds of appeal.
The first ground of appeal
Arguments of the parties
43
By the first ground of appeal put forward in support of its cross-appeals, the Commission submits that the General Court erred in law, in paragraphs 36 to 43 of the judgment under appeal, by adopting a broad interpretation of the concept of ‘publication’ within the meaning of the sixth paragraph of Article 263 TFEU. It maintains that the General Court thus incorrectly held that any publication in the Official Journal comes under that concept, irrespective of whether such publication is a precondition for the entry into force of the measure in question in accordance with Article 297 TFEU and whether it is provided for in the Treaty itself.
44
The Commission submits that, in the first place, the General Court’s interpretation is contrary to the case-law of the Court of Justice as it emerges from the judgment of 17 May 2017, Portugal v Commission (C‑339/16 P, EU:C:2017:384, paragraphs 34 to 40), and from the orders of 31 January 2019, Iordăchescu v Parliament and Others (C‑426/18 P, EU:C:2019:89, paragraph 22), and of 5 September 2019, Fryč v Commission (C‑230/19 P, EU:C:2019:685, paragraph 15). It argues that, by that case-law, the Court of Justice has established a parallel between the sixth paragraph of Article 263 TFEU and Article 297 TFEU, in that the publication of the measure in question constitutes the starting point of the time limit for bringing proceedings only if it is a precondition for the entry into force of that measure and if it is provided for in the Treaty itself.
45
The Commission maintains that that approach is confirmed by a literal, contextual and teleological interpretation of the sixth paragraph of Article 263 TFEU.
46
As regards, first, the wording of that provision, the Commission submits that, in all the language versions, with the exception of the German-language version, the terms ‘publication’ and ‘notification’ appear both in the sixth paragraph of Article 263 TFEU and in Article 297 TFEU, which demonstrates a parallel between those two provisions.
47
As regards, second, the spirit and purpose of the sixth paragraph of Article 263 TFEU, the Commission maintains that the time limits for bringing proceedings laid down in that provision contribute to the objective of legal certainty. It argues that, if a person wishes to challenge a measure, he, she or it must in principle do so within two months of the date on which the final version of the content of the measure came to that person’s knowledge. By contrast, it asserts, in the case of measures of general application which do not specify to whom they are addressed, that date is the date of publication in the Official Journal. In the case of measures which specify to whom they are addressed, that date is the date of notification to that addressee. It is only on an exceptional and subsidiary basis that, in the case of a measure which does not have to be published or notified, the point at which that measure came to the knowledge of the person concerned may constitute an event triggering the time limit for bringing proceedings. Thus, the parallel between the sixth paragraph of Article 263 TFEU and Article 297 TFEU ensures that the subsequent publication of a measure in the Official Journal for information purposes does not lead to an extension of the time limits for bringing proceedings and, therefore, to legal uncertainty.
48
The Commission submits that, in the second place, the publication in the Official Journal of a Commission decision to close a formal investigation procedure cannot be regarded as equivalent to ‘publication’ within the meaning of the second subparagraph of Article 297(2) TFEU. Such publication does not therefore constitute the starting point of the time limit for bringing proceedings.
49
According to the Commission, such a decision is addressed to the Member State concerned and is notified only to that Member State. It submits that, in accordance with the third subparagraph of Article 297(2) TFEU, that decision is to take effect upon such notification and not upon its publication in the Official Journal, which is intended only to inform the public, including the beneficiaries of aid from which the Member State concerned must recover such aid even before the publication of the decision. The Commission maintains, moreover, that such publication is based not on the FEU Treaty, but on Article 32 of Regulation 2015/1589, read in the light of recital 39 thereof. It argues that, in those circumstances, in order to determine the starting point of the time limit for bringing proceedings applicable to an undertaking in receipt of aid for the purpose of challenging a decision to close the formal investigation procedure, it is necessary to rely on the point at which that decision actually came to the knowledge of the person concerned. It submits that, where it cannot be demonstrated that the measure had previously come to the knowledge of the person concerned, the date on which the measure was published in the Official Journal serves, on the basis of a legal fiction, as the point at which that measure actually came to the knowledge of the person concerned.
50
In the third place, the Commission puts forward a series of arguments which, in its submission, support its interpretation of the sixth paragraph of Article 263 TFEU.
51
First, it relies on the scheme of that provision in order to argue that the publication and notification of a measure are placed on an equal footing and that the point at which that measure comes to the knowledge of the person concerned constitutes an event which is subsidiary to publication and notification. It submits that that relationship of subsidiarity is severed by the General Court’s interpretation, since, if publication under Article 32 of Regulation 2015/1589 was tantamount to publication under Article 297(1) TFEU, the time limit for bringing proceedings would have to start to run, including with regard to the Member State concerned and notwithstanding notification, on the date of such publication.
52
Second, the Commission submits that the interpretation adopted by the General Court results in inequality of arms between undertakings from which aid is recovered and their competitors which have not received aid. It states that, while the former in practice receive a copy of the decision from the Member State concerned, the latter have to wait for the publication of the decision in the Official Journal, in accordance with Article 32 of Regulation 2015/1589, with the result that the effective time limits for those undertakings to bring proceedings are different. It argues that that interpretation also results in inequality between the Commission and undertakings from which aid must be recovered. In order to respond to an action brought by an undertaking in receipt of aid, the Commission has a period of two months whereas, by virtue of that interpretation, those undertakings have a longer period in which to prepare their action.
53
Third, the Commission submits that the General Court relied on a misreading of the judgment of 10 March 1998, Germany v Council (C‑122/95, EU:C:1998:94). It argues that, unlike the decision at issue, the relevant decision in the case which gave rise to that judgment did not specify to whom that decision was addressed.
54
Fourth, the Commission submits that paragraph 38 of the judgment under appeal, in which the General Court held that the WEPA companies could subjectively expect the decision at issue to be published in the Official Journal, fails to have regard to the mandatory nature of the time limits for bringing proceedings.
55
The Federal Republic of Germany and the WEPA companies contend that the first ground of appeal is unfounded.
Findings of the Court
56
By the first ground put forward in support of its cross-appeals, the Commission disputes the merits of the General Court’s assessments in paragraphs 36 to 43 of the judgment under appeal. It submits that, contrary to what the General Court held in those paragraphs, the time limit for bringing an action for annulment of the decision at issue ran, for the WEPA companies, not from the date of publication of that decision in the Official Journal, but from the date on which that decision actually came to the knowledge of those companies.
57
In that regard, it should be noted that, in paragraphs 36 to 43 of the judgment under appeal, the General Court dismissed the Commission’s plea of inadmissibility alleging that the action for annulment of the decision at issue brought by the WEPA companies was out of time.
58
It is apparent from a reading of paragraphs 36 to 38 of that judgment as a whole that the General Court considered that the time limit for bringing proceedings ran, in the present case, from the date of publication of the decision at issue in the Official Journal, which took place on 16 January 2019, and that that time limit was observed.
59
In support of that consideration, the General Court observed, in paragraph 37 of that judgment, that the criterion of the date on which the measure came to the knowledge of the applicant as the starting point of that time limit is subsidiary to the criteria of publication or notification of the measure. While pointing out that publication was not a precondition for the decision at issue to come into effect, it found, in paragraph 38 of the judgment under appeal, that that decision had to be published in the Official Journal in accordance with Article 32(3) of Regulation 2015/1589, such that the WEPA companies could legitimately expect that decision to be published.
60
In that regard, it should be recalled that, according to the sixth paragraph of Article 263 TFEU, ‘the proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be’.
61
It is clear from the wording of that provision, in particular from the terms ‘as the case may be’ and ‘in the absence thereof’, that the starting point of the time limit for bringing proceedings is determined by reference to the situation in question and that the three criteria capable of triggering that time limit are hierarchical.
62
Thus, the time limit for bringing an action for annulment starts to run, primarily, from the publication of the measure or from its notification to the applicant. Those two primary criteria are placed, in the scheme of that provision, on an equal footing in that neither of those criteria is subsidiary to the other (see, to that effect, judgment of 17 May 2017, Portugal v Commission, C‑339/16 P, EU:C:2017:384, paragraph 38).
63
By contrast, as the General Court correctly observed in paragraph 37 of the judgment under appeal, the criterion of the date on which the measure being contested came to the knowledge of the applicant as the starting point of the time limit for bringing an action is subsidiary to the criteria of publication or notification of that measure (see, to that effect, judgment of 10 March 1998, Germany v Council, C‑122/95, EU:C:1998:94, paragraph 35), which, moreover, is not disputed in the present case.
64
In the present case, the decision at issue, which closes a formal investigation procedure relating to State aid, was addressed to the Member State concerned, namely the Federal Republic of Germany, and was notified to that Member State, in accordance with the third subparagraph of Article 297(2) TFEU. Accordingly, that decision was published in the Official Journal, in accordance with Article 32(3) of Regulation 2015/1589.
65
In such a situation, it is clear from the case-law of the Court that, for the addressee of the measure to which it was to be notified, namely the Member State concerned, the time limit for bringing an action for annulment runs from the date of that notification, even if the measure is also published in the Official Journal (see, to that effect, judgment of 17 May 2017, Portugal v Commission, C‑339/16 P, EU:C:2017:384, paragraph 37).
66
By contrast, it follows from a literal, teleological and contextual interpretation of the sixth paragraph of Article 263 TFEU, read in the light of the case-law of the Court, that the time limit for bringing an action for annulment runs, for other interested parties such as the WEPA companies, from the publication of the measure in the Official Journal, including where that publication is based not on the second subparagraph of Article 297(2) TFEU, but on a provision of secondary legislation, such as Article 32(3) of Regulation 2015/1589.
67
First, it must be stated that the wording of the sixth paragraph of Article 263 TFEU refers to the ‘publication’ of measures in general (see, to that effect, judgment of 26 September 2013, PPG and SNF v ECHA, C‑625/11 P, EU:C:2013:594, paragraph 31). Thus, that wording does not attach any specific condition to that concept, in particular as regards the legal basis of the obligation to publish.
68
On that point, it is true that, as the Commission claims, the Court has, inter alia, held that the concept of ‘publication’, within the meaning of the sixth paragraph of Article 263 TFEU, refers to publication in the Official Journal which is a precondition for the entry into force of the measure and is provided for in the FEU Treaty (see, to that effect, judgment of 17 May 2017, Portugal v Commission, C‑339/16 P, EU:C:2017:384, paragraph 36; orders of 31 January 2019, Iordăchescu v Parliament and Others, C‑426/18 P, EU:C:2019:89, paragraph 22, and of 5 September 2019, Fryč v Commission, C‑230/19 P, EU:C:2019:685, paragraph 15).
69
However, contrary to the Commission’s assertion, it cannot be inferred from this that the concept of ‘publication’, within the meaning of the sixth paragraph of Article 263 TFEU, is limited to that situation.
70
The precedents cited in paragraph 68 of the present judgment cannot be read in isolation, but form part of the case-law of the Court which has interpreted broadly the concept of ‘publication’ within the meaning of the sixth paragraph of Article 263 TFEU. Thus, in addition to the situation referred to in paragraph 68 above, that concept covers publication of the measure being contested in the Official Journal which is based not on an obligation imposed by the Treaty, but on the established practice of the EU institutions (see, to that effect, judgment of 10 March 1998, Germany v Council, C‑122/95, EU:C:1998:94, paragraphs 36 and 39) or on a provision of secondary legislation, such as Article 32(3) of Regulation 2015/1589 (see, to that effect, order of 25 November 2008, S.A.BA.R. v Commission, C‑501/07 P, EU:C:2008:652, paragraph 23); it also covers publication on the website of an EU institution, body, office or agency where such publication is provided for under secondary legislation (see, to that effect, judgment of 26 September 2013, PPG and SNF v ECHA, C‑625/11 P, EU:C:2013:594, paragraphs 30 to 32).
71
Second, as regards the objectives of the sixth paragraph of Article 263 TFEU, it should be borne in mind that, according to settled case-law, the time limits for bringing proceedings under that provision are a matter of public policy and are not subject to the discretion of the parties or the Court. They were established with the aim of safeguarding legal certainty by preventing EU measures which produce legal effects from being called in question indefinitely and of avoiding any discrimination or arbitrary treatment in the administration of justice (see, to that effect, judgments of 12 December 1967, Muller-Collignon v Commission, 4/67, EU:C:1967:51, p. 372, and of 23 January 1997, Coen, C‑246/95, EU:C:1997:33, paragraph 21; orders of 16 November 2010, Internationale Fruchtimport Gesellschaft Weichert v Commission, C‑73/10 P, EU:C:2010:684, paragraph 52, and of 31 January 2019, Iordăchescu v Parliament and Others, C‑426/18 P, EU:C:2019:89, paragraph 21).
72
As regards a decision such as the decision at issue, which closes a formal investigation procedure relating to State aid, it appears that, unlike the date on which it came to the knowledge of the person concerned, the date of publication of a measure in the Official Journal can, in the interests of legal certainty, be established objectively and with certainty in respect of all interested parties to which that decision has not been notified. In that regard, it is immaterial whether those interested parties may have become aware of that measure prior to its publication.
73
In addition, that explains why, in the general scheme of the sixth paragraph of Article 263 TFEU and in the interests of legal certainty, the date of publication takes precedence over the date on which the measure came to the knowledge of the person concerned, which, as has been recalled in paragraph 63 of the present judgment, is a subsidiary criterion in terms of when the time limit for bringing proceedings starts to run. It is therefore not possible to accept the Commission’s argument when, in actual fact, it suggests reversing the relationship between those two criteria referred to in the sixth paragraph of Article 263 TFEU.
74
Moreover, contrary to the Commission’s assertions, the interpretation adopted in paragraphs 66 and 70 of the present judgment is also such as to avoid any discrimination or arbitrary treatment in the administration of justice and thus to ensure equality of arms between beneficiaries of State aid and competing undertakings. For all those interested parties, the time limit for bringing proceedings starts to run from the same date, namely the date on which the decision was published in the Official Journal. Furthermore, inasmuch as the Commission is the author of such a decision and is responsible for its publication in the Official Journal, it cannot validly put forward an argument alleging inequality of arms to its detriment.
75
Third, as regards the context, the structure of the Treaties also militates against the strict parallel, suggested by the Commission, between the concepts of ‘publication’ used in the sixth paragraph of Article 263 TFEU and in the second subparagraph of Article 297(2) TFEU, respectively. It is sufficient to state, in that regard, that, although those two provisions come under Title I of Part Six of the FEU Treaty, they do not govern the same subject matter. While the first provision is contained in Chapter 1 of that title, which is devoted to the institutions, and, more specifically, in Section 5 of that chapter, which is devoted to the Court of Justice of the European Union, the second provision comes under Chapter 2 of that title, which deals with the legal acts of the European Union and their adoption procedures.
76
For all those reasons, the Court finds that the General Court correctly held, in paragraphs 36 to 43 of the judgment under appeal, that the time limit for bringing proceedings started to run, for the WEPA companies, on the date of publication of the decision at issue in the Official Journal.
77
Accordingly, the first ground of appeal put forward in support of the cross-appeals must be rejected as unfounded.
The second ground of appeal
Arguments of the parties
78
By the second ground of appeal put forward in support of its cross-appeals, the Commission alleges that the General Court made an error of law in paragraph 41 of the judgment under appeal.
79
It maintains that, by stating, in paragraph 41 of that judgment, that ‘it has not been demonstrated that, in the present case, the [WEPA companies] took “due cognisance” of the decision [at issue]’ prior to the publication of that decision, the General Court distorted the facts and evidence. It argues that it is clear, in the light of the evidence put forward by the Commission before the General Court, that the existence of the decision at issue had come to the knowledge of those companies prior to its publication in the Official Journal, at the latest by 26 September 2018.
80
The Federal Republic of Germany and the WEPA companies contend that, since the first ground of the cross-appeals is unfounded, the second ground of appeal is irrelevant to the outcome of the present appeals. Those companies add that that second ground of appeal is, in any event, also unfounded.
Findings of the Court
81
In paragraph 41 of the judgment under appeal, the General Court observed that ‘in any event, it has not been demonstrated that, in the present case, the [WEPA companies] took “due cognisance” of the decision [at issue]’.
82
In that regard, the term ‘in any event’ indicates that that ground was included in the judgment under appeal purely for the sake of completeness. According to settled case-law, arguments directed against grounds included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and are therefore ineffective (judgment of 21 December 2023, United Parcel Service v Commission, C‑297/22 P, EU:C:2023:1027, paragraph 55 and the case-law cited).
83
Accordingly, the second ground of appeal put forward in support of the cross-appeals must be rejected as ineffective.
84
Consequently, the cross-appeals must be dismissed in their entirety.
The main appeals
85
In support of their appeal in Case C‑795/21 P, the WEPA companies put forward two grounds of appeal, alleging (i) distortion of the facts and misinterpretation of the content and scope of national law, and (ii) failure to have regard to the conditions for the existence of State aid granted ‘through State resources’ within the meaning of Article 107(1) TFEU.
86
In support of its appeal in Case C‑796/21 P, the Federal Republic of Germany, supported by the WEPA companies, puts forward a single ground of appeal, alleging infringement of Article 107(1) TFEU. That ground of appeal is essentially the same as the second ground of appeal put forward by the WEPA companies, supported by the Federal Republic of Germany, in support of their appeal in Case C‑795/21 P.
First ground of appeal in Case C‑795/21 P
Arguments of the parties
87
By their first ground put forward in support of their appeal, the WEPA companies complain that the General Court distorted the facts and misconstrued the content and scope of national law. That ground of appeal is formally divided into three parts.
88
By the first part, the WEPA companies submit that, in paragraphs 12, 66, 93 and 99 of the judgment under appeal, the General Court incorrectly found that the BNetzA had set the amount of the surcharge at issue in a binding manner. According to them, it is apparent in that regard from recitals 61, 75 and 123 of the decision at issue that the amount of that surcharge was determined by the network operators. They maintain that the same applies to the year 2012 in respect of which that surcharge was levied for the first time by those operators. The amount of that surcharge was never imposed by the BNetzA. As regards 2012, they submit that the BNetzA merely gave an estimate of the overall amount of the losses in revenue borne by the network operators, but did not in any way set the amount of the surcharge at issue, since such a determination would have required other factors to be taken into account.
89
By the second part, the WEPA companies contest, in essence, paragraph 93 of the judgment under appeal. They maintain that, contrary to what the General Court stated in that paragraph, the BNetzA did not impose on the transmission system operators ‘a very detailed methodology for calculating’ the surcharge at issue. The General Court’s finding is therefore at odds with recitals 61, 75 and 123 of the decision at issue. The WEPA companies argue that the BNetzA’s requirements are very general and relate to forecasted losses of revenue and capital losses over the coming year. They do not contain any requirement as to the specific manner in which the transmission system operators were supposed to calculate the surcharge at issue on the basis of forecasted losses in revenue.
90
By the third part, the WEPA companies complain that the General Court distorted the facts by stating, in paragraphs 93, 94, 99 and 106 et seq. of the judgment under appeal, that losses in revenue were fully covered by the surcharge at issue. They argue that national law addresses only the issue of the recovery of debts in respect of exempted baseload consumers which could not be enforced due to the insolvency of those consumers, and precludes such debts from being covered by the surcharge at issue. Thus, losses linked to the insolvency of those consumers are covered by the network operators’ own resources and not by State resources. In addition, they maintain that other costs also have to be borne by the network operators, namely capital costs and administrative charges paid to the BNetzA.
91
In their reply, the WEPA companies allege, moreover, that there was a failure to state reasons vitiating paragraphs 94, 99 and 106 et seq. of the judgment under appeal, in that the General Court did not, at least in summary form, state in a comprehensible manner the reason why the network operators’ losses in revenue which were not covered by the surcharge at issue should not be taken into account.
92
The Commission contends that the three parts raised in support of the first ground of the appeal in Case C‑795/21 P are manifestly unfounded and that certain arguments are, in any event, inadmissible.
Findings of the Court
93
As a preliminary point, as regards the arguments relating to the errors allegedly made by the General Court in its analysis of German law, it should be recalled that it follows from the second subparagraph of Article 256(1) TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is to be limited to points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and the assessment of that evidence therefore do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 46 and the case-law cited).
94
Accordingly, with respect to the assessment in the context of an appeal of the General Court’s findings on national law, which, in the field of State aid, constitute findings of fact, the Court of Justice has jurisdiction only to determine whether there was a distortion of that law (judgments of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 79, and of14 December 2023, Commission v Amazon.com and Others, C‑457/21 P, EU:C:2023:985, paragraph 20 and the case-law cited). A distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 80).
95
Furthermore, where an appellant alleges distortion of the facts or evidence by the General Court, he or she must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his or her view, led to such distortion (judgments of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 99, and of 28 April 2022, Yieh United Steel v Commission, C‑79/20 P, EU:C:2022:305, paragraph 53).
96
It is in the light of the foregoing that the WEPA companies’ first ground of appeal, alleging a number of distortions of national law and of the facts, must be examined.
97
As regards the first part of the present ground of appeal, it must be observed, first, that the claim by those companies that the General Court distorted the facts in finding that the BNetzA set the amount of the surcharge at issue in a binding manner is based on a misreading of the judgment under appeal.
98
It is unequivocally clear from an overall reading of paragraphs 12, 66, 93 and 99 of the judgment under appeal, which are contested by that claim, that the General Court considered that the surcharge at issue was to be calculated by the transmission system operators on the basis of a methodology established by the BNetzA and that, as regards 2012, the BNetzA set the total amount of that surcharge. That reading is explicitly clear from paragraph 66 of that judgment. The absence of any mention of the adjective ‘total’ in paragraph 12 of the judgment under appeal is irrelevant in that regard, given that the General Court clearly based itself on the taking into account of a total initial amount in the grounds of that judgment. Similarly, in paragraph 93 of that judgment, the General Court referred to the setting of an initial amount of the surcharge at issue in respect of 2012, which is readily understandable as being the overall amount, and, in respect of the following year, to the methodology for calculating that surcharge as determined by the BNetzA. Furthermore, the mere reference, in paragraph 99 of the judgment under appeal, to the ‘surcharge at issue, as calculated by the BNetzA (in respect of 2012)’ cannot lead to a different conclusion since that wording, although imprecise, can perfectly well be understood as a reference to the total amount of that surcharge, which is supported by an overall reading of the judgment under appeal. As for the rest, paragraph 99 of that judgment also refers to the methodology set by the BNetzA in respect of 2013.
99
No other conclusion can be drawn from recitals 61, 75 and 123 of the decision at issue to which the WEPA companies refer. It follows from those recitals that, although the transmission system operators had to determine the actual amount of the surcharge at issue, the Commission also noted, as did the General Court, that, in this respect, they had to comply with the framework and methodology set by the BNetzA.
100
Second, it must be observed that, in so far as the WEPA companies insist, in the context of that claim relating to the determination of the surcharge at issue, that the network operators had a margin of discretion, their line of argument amounts to challenging a factual appraisal without establishing any distortion, which falls outside the jurisdiction of the Court of Justice at the appeal stage, in accordance with the case-law referred to in paragraph 93 of the present judgment.
101
As regards the second part of the present ground of appeal, it should be noted that, in paragraph 93 of the judgment under appeal, the General Court stated that, ‘for the second year of application of the scheme, [the 2011] BNetzA decision established a very detailed methodology for calculating the surcharge [at issue]’. It added that, according to that methodology, ‘transmission system operators had to determine, on the one hand, the forecasted financial losses resulting from the exemption [at issue] compared to the full network charge and, on the other hand, the forecasted consumption, in order to determine the amount of the surcharge at issue per kilowatt/hour, taking into account the proceeds resulting from two years earlier’ and that ‘the transmission system operators had to adjust the amount of the surcharge at issue each year on the basis of the real need in terms of financial resources for the previous year’. Those statements reproduce, in essence, recitals 37 and 39 of the decision at issue.
102
In that regard, it is not disputed that the WEPA companies do not specifically challenge that description of the methodology for calculating the surcharge at issue, but rather challenge the characterisation of that methodology as a ‘very detailed methodology’. Even if such a characterisation were incorrect, it would have no bearing on the General Court’s analysis of that methodology as such. It cannot therefore be claimed that the General Court distorted national law in that regard.
103
Moreover, as to the remainder, the WEPA companies’ arguments relating to the transmission system operators’ margin of discretion in calculating the surcharge at issue ultimately contradict the findings set out in recital 123 of the decision at issue according to which those operators have no margin of discretion. Thus, those companies are asking the Court of Justice to carry out a new assessment of the methodology for calculating the surcharge at issue, which, in the absence of any distortion, falls outside that court’s jurisdiction at the appeal stage.
104
As regards the third part, it should be noted that, in paragraphs 90, 91, 93, 94, 99, 106 and 107 of the judgment under appeal, the General Court, referring to the 2011 BNetzA decision, endorsed the Commission’s finding in the decision at issue that the mechanism of the surcharge at issue fully compensated network operators for their losses in revenue stemming from the exemption at issue, since the amount of that surcharge was adjusted to meet the financial needs triggered by that exemption. It added, in particular in paragraph 94 of that judgment, that losses in revenue due to insolvency, the financial effects of which are borne by the distribution system operators, do not constitute a loss of revenue for the purposes of the scheme in question and are justified by the fact that the relationships between the network operators and the persons ultimately liable for payment of the surcharge at issue are relationships governed by private law.
105
In so doing, the General Court sufficiently set out the reasons why it rejected the WEPA companies’ arguments alleging the absence of full compensation for losses in revenue resulting from the exemption at issue.
106
Essentially, the finding that the methodology for calculating the amount of the surcharge at issue provided for in the 2011 BNetzA decision was intended to enable all the costs associated with the exemption at issue to be covered constitutes a factual appraisal by the General Court which it is not for the Court of Justice to review at the appeal stage. The same also applies to the specific question whether, in fact, all the losses and costs associated with the exemption at issue and the bad debts linked to the insolvency of baseload consumers which had wrongly benefited from that exemption were covered by the surcharge at issue. The WEPA companies have failed to establish any distortion in that regard.
107
In the light of all of the foregoing, the three parts of the first ground of appeal put forward by the WEPA companies must be rejected in their entirety as, in part, inadmissible and, in part, unfounded. Accordingly, that ground of appeal must be rejected in its entirety.
The second ground of appeal in Case C‑795/21 P and the single ground of appeal in Case C‑796/21 P
108
By the second ground put forward in support of the appeal in Case C‑795/21 P and by the single ground of appeal in Case C‑796/21 P, respectively, the WEPA companies and the Federal Republic of Germany claim that the General Court infringed Article 107(1) TFEU inasmuch as it erred in holding that the exemption at issue constitutes aid granted through ‘State resources’ within the meaning of that provision.
109
Their arguments concern, in essence, three questions relating to (i) the legal test for assessing whether a measure granted through ‘State resources’ exists; (ii) the existence of a compulsory charge, and (iii) State control.
The legal test for assessing whether a measure granted through ‘State resources’ exists
– Arguments of the parties
110
The WEPA companies, by the first complaint in the first part and the second and third complaints in the second part of their second ground of appeal, and the Federal Republic of Germany, by the first part of its single ground of appeal, claim, in essence, that the General Court applied an incorrect legal test in order to assess whether the resources at issue were State resources.
111
In the first place, by the first part of their second ground of appeal, the WEPA companies claim, in essence, that, in paragraphs 77 to 96 of the judgment under appeal, the General Court erred in holding that the surcharge at issue constitutes a ‘charge’ within the meaning of EU law, and, accordingly, aid granted through State resources within the meaning of Article 107(1) TFEU. According to them, it follows from the case-law of the Court of Justice stemming inter alia from the judgments of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413); of 19 December 2013, Association Vent De Colère! and Others (C‑262/12, EU:C:2013:851); of 13 September 2017, ENEA (C‑329/15, EU:C:2017:671); of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268); of 15 May 2019, Achema and Others (C‑706/17, EU:C:2019:407); and of 16 September 2021, FVE Holýšov I and Others v Commission (C‑850/19 P, EU:C:2021:740), that such a ‘charge’ exists only where a Member State, unilaterally and by an act of public authority, imposes an obligation to pay on the addressee of that act. They maintain that, in paragraph 77 of the judgment under appeal, the General Court relied on a different – and therefore incorrect – criterion in examining whether the surcharge at issue, imposed by that State, was passed on entirely, by virtue of a legal obligation, to the persons ultimately liable for payment of that surcharge.
112
Moreover, they argue that, in disregard of the case-law of the Court of Justice, the General Court failed to ascertain whether the person liable for payment was under a legal obligation to pay.
113
In the second place, in their written pleadings lodged before the Court of Justice, the WEPA companies, by the third complaint in the second part of their second ground of appeal, and the Federal Republic of Germany contested, respectively, paragraphs 62 et seq., 76, 79 and 110 and paragraphs 62 to 64 and 76 of the judgment under appeal on the ground that the General Court erred in holding that, for the purpose of determining whether or not the resources in question are State resources, the existence of a compulsory charge on end consumers or customers and State control over the funds or the administrators of those funds are two factors which ‘together form an alternative’. They submit that, on the contrary, these are cumulative criteria, as is apparent from the case-law arising, inter alia, from the judgments of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413, paragraphs 66, 69, 70, 72 and 75); of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268, paragraph 72); of 15 May 2019, Achema and Others (C‑706/17, EU:C:2019:407); and of 16 September 2021, FVE Holýšov I and Others v Commission (C‑850/19 P, EU:C:2021:740).
114
In addition, the WEPA companies claim, by the second complaint in the second part of their second ground of appeal, that a third criterion must be fulfilled. Thus, they submit that it is apparent from the case-law of the Court of Justice that a sufficiently direct link between the surcharge at issue and the State budget must be established in order for it to be possible to conclude that there is aid ‘granted through State resources’ within the meaning of Article 107(1) TFEU. However, neither the decision at issue nor the judgment under appeal contains any evidence to support the conclusion that the surcharge at issue has such a link with the State budget. Moreover, they maintain that it is apparent from the findings of the Commission and of the General Court that neither the BNetzA nor any other State body assumed responsibility for fully offsetting losses in revenue.
115
In addition, according to the Federal Republic of Germany, that interpretation by the General Court, based on alternative criteria, contradicts paragraphs 97 to 109 of the judgment under appeal, in which the General Court assessed whether State control existed, even though it had already concluded that a compulsory charge existed.
116
In the third place, according to the Federal Republic of Germany, that approach adopted by the General Court is also not supported by Articles 30 and 110 TFEU, which essentially concern the removal and prohibition of protectionist measures.
117
In the fourth place, the Federal Republic of Germany submits that the interpretation of Article 107(1) TFEU according to which it must be presumed that any charge has its origin in the State, irrespective of the objectives pursued by that provision, is incorrect in law. It maintains that that interpretation would lead to a consequence not envisaged in the Treaties, namely that any regulation of market prices would result in use of State resources and would therefore have to be notified, in accordance with Article 108 TFEU. It argues that such regulation falls within the scope of the free movement of goods and not the rules on State aid.
118
The Commission disputes the merits of the second complaint in the second part of the second ground of appeal put forward by the WEPA companies and contends that the first part and the third complaint in the second part of that ground of appeal, like the first part of the single ground of appeal put forward by the Federal Republic of Germany, are, as such, ineffective.
– Findings of the Court
119
The WEPA companies and the Federal Republic of Germany complain, in essence, that the General Court applied an incorrect legal test in order to determine whether the amounts resulting from the surcharge at issue have their origin in ‘State resources’ within the meaning of Article 107(1) TFEU.
120
According to settled case-law, classification as ‘State aid’ within the meaning of Article 107(1) TFEU requires four conditions to be satisfied, namely, that there be intervention by the State or ‘through State resources’, that the intervention be liable to affect trade between Member States, that that intervention confer a selective advantage on the beneficiary and that the same intervention distort or threaten to distort competition (judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 31 and the case-law cited).
121
As regards the first of those conditions, it is settled case-law that a measure may be classified as an intervention by the State or as aid granted ‘through State resources’ if, first, the measure is granted directly or indirectly through those resources and, second, the measure is imputable to a Member State (judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 32 and the case-law cited).
122
As regards, more specifically, the condition that the advantage be granted ‘through State resources’, the Court has, in its case-law, identified two criteria for establishing that the funds by means of which a tariff advantage is granted under national legislation constitute ‘State resources’ within the meaning of Article 107(1) TFEU (see, to that effect, judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraphs 34, 38, 39 and 42).
123
Thus, in the first place, funds financed by a charge or other compulsory surcharges under national legislation and managed and apportioned in accordance with that legislation constitute ‘State resources’ within the meaning of Article 107(1) TFEU (judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 38).
124
According to the Court’s case-law clarifying that criterion, amounts resulting from the price surcharge imposed by the State on purchasers of electricity are similar to a charge which is levied on electricity and have their origin in ‘State resources’ within the meaning of Article 107(1) TFEU. In order to be regarded as such, the funds must derive from compulsory contributions imposed by the legislation of the Member State concerned and must be managed and apportioned in accordance with that legislation, irrespective of whether the financing mechanism falls, strictly speaking, within the category of fiscal surcharges under national law. By contrast, it is not sufficient that the network operators pass on in the electricity sale price to their end customers the additional costs caused by their obligation to purchase electricity generated from certain energy sources at the statutory rates, where that offsetting is the result not of a legal obligation, but only of a practice. In such a case, the surcharge could not be regarded as compulsory (see, to that effect, judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraphs 34 to 37 and the case-law cited).
125
In the second place, the fact that sums constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as ‘State resources’ within the meaning of that provision (judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 39 and the case-law cited).
126
The criteria referred to in paragraphs 123 and 125 of the present judgment constitute alternative criteria for establishing that a measure is granted ‘through State resources’ within the meaning of Article 107(1) TFEU (see, to that effect, judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 42), as the Federal Republic of Germany acknowledged at the hearing in response to a question from the Court regarding the scope of the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1).
127
It follows, first, that the General Court did not err in law when, in paragraphs 62 to 64 and 76 of the judgment under appeal, it held that the nature of the resources as State resources, for the purposes of Article 107(1) TFEU, may be established by means of two alternative conditions, one relating to the existence of a compulsory charge on end consumers or customers and the other to State control over the administration of the scheme and, in particular, over funds or the administrators of those funds. In the light of the replies given by the Federal Republic of Germany at the hearing, all the arguments put forward by that Member State challenging that assessment must be rejected.
128
The WEPA companies’ arguments that the case-law of the Court of Justice did not lay down alternative criteria are based precisely on the case-law of the Court which the latter summarised in the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1) and from which it inferred the existence of two alternative criteria. Therefore, those arguments must also fail.
129
Moreover, in so far as the WEPA companies claim that the General Court should have applied a concept of ‘charge’ understood as the unilateral imposition, by an act of public authority, of an obligation to pay, and a criterion relating to the existence of a sufficiently direct link between the State budget and the surcharge at issue, it must be stated that, in accordance with the case-law of the Court of Justice set out in paragraphs 123 to 125 of the present judgment, none of the alternatives correctly relied on by the General Court refers to such a concept or criterion. The existence of a compulsory charge, for the purposes of the case-law referred to in paragraph 123 of the present judgment must be assessed in the light of the factors set out in paragraph 124 thereof. Those factors have been established by the case-law of the Court of Justice referred to in paragraphs 55 to 62 of the judgment under appeal and summarised in paragraphs 34 to 37 of the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1), without this being specifically challenged in the context of the present appeals. By determining, as it announced in paragraphs 76 and 77 of the judgment under appeal, whether the surcharge at issue was imposed by the State and was passed on entirely, under a legal obligation, to the persons ultimately liable for payment of that surcharge, the General Court complied with that case-law.
130
Second, contrary to what the Federal Republic of Germany claims, the General Court cannot be criticised for having considered it appropriate to examine, in paragraphs 97 to 109 of the judgment under appeal, whether there was State control over the funds collected by way of the surcharge at issue or over the network operators, after having found, in paragraph 96 of that judgment, that there was a parafiscal charge or a compulsory charge involving the use of State resources.
131
It is true that the General Court could have dispensed with that examination of whether State control existed, given the alternative nature of the two criteria which it examined. However, nothing precludes the General Court, inter alia on grounds relating to the sound administration of justice, from pursuing its reasoning with considerations that are included purely for the sake of completeness, such as, in the present case, considerations relating to the existence of State control, in the same way as the Court of Justice did in paragraph 41 of the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1).
132
Third, in so far as the Federal Republic of Germany argues that it would be contrary to the objectives of Article 107(1) TFEU to presume that any charge has its origin in the State, its line of argument is based on an incorrect premiss and a misreading of the judgment under appeal.
133
As is apparent from paragraph 123 of the present judgment, it is not the funds financed by any charge but only those that are financed by a compulsory charge, provided for under national legislation, and managed and apportioned in accordance with that legislation, which are capable of constituting ‘State resources’ within the meaning of that provision. Moreover, as has been observed in paragraph 129 of the present judgment, the General Court, as is apparent from paragraphs 76 and 77 of the judgment under appeal, specifically sought to determine whether the surcharge at issue was imposed by the State and was passed on entirely, under a legal obligation, to the persons ultimately liable for payment of that surcharge.
134
Fourth, as regards the line of argument put forward by the Federal Republic of Germany concerning Articles 30 and 110 TFEU, it must be stated that, in paragraph 85 of the judgment under appeal, the General Court, in a ground included purely for the sake of completeness which is introduced by the adverbial phrase ‘furthermore’, took into account the case-law relating to those provisions. It inferred from this that the identity of the person liable for payment of the charge is of little account in so far as the charge relates to the product in question or to a necessary activity in connection with that product. It added that the decisive factor is therefore that the undertakings which levied the charge are not merely bound by an obligation to purchase by means of their own financial resources, but are appointed by the State to administer a State resource.
135
Since that paragraph sets out a ground included purely for the sake of completeness, the line of argument contesting it is ineffective.
136
In any event, the Court finds that the General Court referred to the case-law relating to Articles 30 and 110 TFEU not in order to assess the surcharge at issue in the light of those provisions, but rather to support its analysis of that surcharge in the light of Article 107(1) TFEU. Accordingly, it cannot be alleged that the General Court confused the separate legal regimes arising from the first two of those provisions of the FEU Treaty and from the third of those provisions, respectively.
137
Lastly, as regards the WEPA companies’ arguments alleging the absence, in the present case, of an obligation to pay imposed on end users of electricity and the absence of compensation for losses in revenue, as set out in paragraphs 112 and 114 of the present judgment, they relate to the examination of the merits of the General Court’s assessments regarding the existence of a compulsory charge. Those arguments will therefore be assessed in the context of that examination.
138
It follows from the foregoing that, subject to the reservation expressed in the preceding paragraph, the first part and the second and third complaints in the second part of the second ground of appeal put forward by the WEPA companies and the first part of the single ground of appeal put forward by the Federal Republic of Germany must be rejected as, in part, ineffective and, in part, unfounded.
The existence of a compulsory charge
– Arguments of the parties
139
The WEPA companies, by some of their arguments referred to in paragraphs 112 and 114 of the present judgment, and the Federal Republic of Germany, by the second part of its single ground of appeal, submit, in essence, that, in paragraphs 78 and 82 to 89 of the judgment under appeal, the General Court misapplied Article 107(1) TFEU by classifying the surcharge at issue as a parafiscal charge or as a compulsory charge.
140
The WEPA companies complain, first, that the General Court failed to ascertain whether the person liable for payment was under a legal obligation to pay. They submit that it is not disputed that the 2011 BNetzA decision does not contain any such obligation and is not addressed to the network users, with the result that the obligation to pay the surcharge at issue was purely contractual in nature. Even if, by virtue of that decision, there was an obligation to collect the surcharge at issue and pass it on to the network users, such an obligation would not be sufficient to establish use of State resources. Furthermore, they argue, the BNetzA neither set the amount of that surcharge nor collected it. It has no power of disposal over the amounts collected.
141
Second, the WEPA companies submit that, as is apparent from the findings of the Commission and of the General Court, neither the BNetzA nor any other State body assumed responsibility for fully offsetting losses in revenue.
142
Similarly, the Federal Republic of Germany submits that, inter alia in paragraphs 77, 82, 83 and 85 of the judgment under appeal, the General Court erred in holding that the relationship between the supplier and the end user of electricity was not decisive for the purpose of concluding that there was a compulsory charge, on the incorrect ground that the surcharge at issue is collected not for the consumption of electricity, but for the use of the network. Moreover, it maintains that, in paragraphs 84 and 86 to 89 of that judgment, the General Court erred in referring, without stating any reasons, to the obligation to collect and, on that basis, incorrectly inferred an obligation to pay the surcharge at issue provided for under national law. In the absence of any legal obligation to pay that surcharge, it could have been collected only on the basis of the rules of civil law. It argues that the reasoning used by the General Court to arrive at that finding and that inference is contrary to the case-law of the Court of Justice.
143
The Commission disputes all those arguments and contends that the arguments put forward by the Federal Republic of Germany are based on a misreading of the judgment under appeal and of the case-law of the Court of Justice and that they are, in any event, ineffective.
– Findings of the Court
144
It is apparent from the case-law cited in paragraph 123 of the present judgment that funds financed by a charge or other compulsory surcharges under national legislation and managed and apportioned in accordance with that legislation constitute ‘State resources’ within the meaning of Article 107(1) TFEU.
145
In the present case, after assessing, in paragraphs 77 to 95 of the judgment under appeal, the surcharge at issue, the General Court concluded, in paragraph 96 of that judgment, that that surcharge involved the use of State resources. In support of that conclusion, it observed that the 2011 BNetzA decision imposed on distribution system operators an obligation to collect the surcharge at issue from the network users and to transfer the corresponding proceeds to the transmission system operators. It also considered that the mechanism of that surcharge fully compensated network operators for their losses in revenue stemming from the exemption at issue, since the amount of that surcharge was adjusted to meet the financial needs triggered by that exemption. It also pointed out that that amount was determined according to a methodology set by the 2011 BNetzA decision, while noting that, in respect of 2012, that decision set the initial amount of the abovementioned surcharge.
146
In the first place, the WEPA companies and the Federal Republic of Germany claim that the General Court erred in finding that end users were under an obligation to pay the surcharge at issue, and submit that those users, moreover, were incorrectly defined as including the network users.
147
First, as regards the identification of the persons ultimately liable for payment of the surcharge at issue, the General Court held, in paragraph 82 of the judgment under appeal, that that surcharge concerned only the relationship between the network operators and the network users, since that surcharge is collected not for the consumption of electricity, but for the use of the network. It concluded on that basis, in paragraph 83 of that judgment, that the question as to whether the electricity suppliers were obliged in turn to pass that surcharge on to the end users of electricity was irrelevant. In its view, the persons ultimately liable for payment of the surcharge were the network users, that is to say, the suppliers themselves and the end users directly connected to the network, and not the other end users.
148
In that regard, the consideration that the surcharge at issue is collected for the use of the network and the consideration that the network users must be regarded as end users are matters of factual appraisal. In accordance with the case-law referred to in paragraph 93 of the present judgment, it is not for the Court of Justice to review such an appraisal, in the absence of any allegation of distortion.
149
Second, as regards the existence of an obligation to pay on the part of the network users, it is apparent from paragraphs 84 and 86 to 88 of the judgment under appeal that the General Court endorsed the Commission’s findings that the 2011 BNetzA decision imposed on distribution system operators an obligation to collect the surcharge at issue and to pass it on, and that that decision provided that the proceeds from that surcharge must be transferred to the various transmission system operators on a monthly basis. The General Court concluded therefrom that the surcharge at issue, introduced by an administrative authority through a regulatory measure, was binding on the network users.
150
It is thus apparent from the findings of fact made by the General Court, which it is not for the Court of Justice to review, that the 2011 BNetzA decision required the distribution system operators to collect the surcharge at issue from the network users. It is also common ground, in the light of the findings of fact made by the General Court in paragraphs 12, 66 and 93 of the judgment under appeal, which it is not for the Court of Justice to review, that that decision laid down the methodology by which the amount of the surcharge at issue was to be calculated each year by the transmission system operators.
151
In the light of the case-law referred to in paragraph 124 of the present judgment, the Court finds that amounts resulting from a compulsory surcharge which, like the surcharge at issue, is imposed by a regulatory measure identifying the entities – even those which are private – responsible for collecting that surcharge from persons liable for payment that are also identified by that measure and defining the methodology – even if general – for calculating the amount of that surcharge and its annual adjustment, have their origin in ‘State resources’ within the meaning of Article 107(1) TFEU. In particular, since that surcharge has its origin in a regulatory measure which requires network operators to collect it, it cannot be asserted that it is the result of a mere practice.
152
In that regard, it is irrelevant that the regulatory measure provides only for an obligation on the part of the network operators to collect the surcharge at issue without expressly identifying an obligation on the part of the network users to pay that surcharge. The effectiveness of the legal obligation to collect that surcharge necessarily implies a symmetrical obligation to pay that charge on the part of the persons liable for such payment.
153
In the second place, as regards the compensation – referred to by the WEPA companies – of the costs generated by the exemption at issue, it should be noted that the General Court, referring to the 2011 BNetzA decision, endorsed, in paragraphs 90, 91 and 94 of the judgment under appeal, the Commission’s finding in the decision at issue that the mechanism of the surcharge at issue fully compensated network operators for their losses in revenue stemming from the exemption at issue, since the amount of that surcharge was adjusted to meet the financial needs triggered by that exemption.
154
As has already been observed in paragraph 106 of the present judgment, the finding that the methodology for calculating the amount of the surcharge at issue provided for in the 2011 BNetzA decision was intended to enable all the costs associated with the exemption at issue to be covered constitutes a factual appraisal by the General Court which it is not for the Court of Justice to review at the appeal stage in the absence of any allegation of distortion, in accordance with the case-law referred to in paragraph 93 of the present judgment.
155
In the light of the foregoing, the arguments raised by the WEPA companies and the second part of the single ground of appeal put forward by the Federal Republic of Germany must be rejected as, in part, inadmissible and, in part, unfounded.
State control
– Arguments of the parties
156
The WEPA companies, by the first complaint in the second part of their second ground of appeal, and the Federal Republic of Germany, by the third part of its single ground of appeal, claim, in essence, that the General Court erred in law in holding that there is State control over the funds arising from the surcharge at issue.
157
The Commission contends that that first complaint and that third part are unfounded and, in any event, ineffective.
– Findings of the Court
158
As is apparent from the case-law cited in paragraphs 122 to 126 of the present judgment, the existence of a charge or other compulsory surcharges under national legislation and managed and apportioned in accordance with that legislation and the existence of State control over the sums in question constitute two alternative criteria for identifying ‘State resources’ within the meaning of Article 107(1) TFEU.
159
In the present case, the General Court found, in paragraph 96 of the judgment under appeal, that the surcharge at issue constituted a parafiscal charge or a compulsory charge involving the use of ‘State resources’ within the meaning of that case-law. As is apparent from paragraphs 144 to 155 of the present judgment, the WEPA companies and the Federal Republic of Germany have not succeeded in demonstrating that that finding of the General Court is vitiated by an error of law.
160
That finding is, in itself, sufficient for it to be held that the measure at issue was granted through State resources within the meaning of Article 107(1) TFEU, without there being any need to examine whether the sums in question were under State control.
161
Accordingly, the first complaint in the second part of the second ground of appeal put forward by the WEPA companies and the third part of the Federal Republic of Germany’s single ground of appeal are ineffective.
162
It follows from all of the foregoing that the second ground put forward in support of the appeal in Case C‑795/21 P and the single ground put forward in support of the appeal in Case C‑796/21 P must be rejected in their entirety.
163
Consequently, since all the grounds of appeal put forward in support of the main appeals in Cases C‑795/21 P and C‑796/21 P have been rejected, those appeals must be dismissed in their entirety.
Costs
164
Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Article 138(1) and (2) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings and that, where there is more than one unsuccessful party, the Court is to decide how the costs are to be shared.
165
In the present case, the WEPA companies and the Federal Republic of Germany have been unsuccessful in all of their claims concerning, respectively, the main appeal in Case C‑795/21 P and the main appeal in Case C‑796/21 P, while the Commission has been unsuccessful in all of its claims concerning the cross-appeals in those cases.
166
In view of those factors, on a fair assessment of the circumstances of the present case, each party should be ordered to bear its own costs.
On those grounds, the Court (Third Chamber) hereby:
1.
Dismisses the main appeals and the cross-appeals;
2.
Orders WEPA Hygieneprodukte GmbH, WEPA Deutschland GmbH & Co. KG, the Federal Republic of Germany and the European Commission to bear their own costs.
[Signatures]
(
*1
)	Language of the case: German.