62018TJ0745_RES
Case T‑745/18
Covestro Deutschland AG
v
European Commission
Judgment of the General Court (Third Chamber), 6 October 2021
(State aid – State aid scheme implemented by Germany in favour of certain large electricity consumers – Exemption from network charges in 2012 and 2013 – Decision declaring the aid scheme incompatible with the internal market and unlawful and ordering the recovery of the aid granted – Action for annulment – Time limit for bringing proceedings – Admissibility – Concept of aid – State resources – Equal treatment – Legitimate expectations)
Action for annulment – Time limits – Point from which time starts to run – Date of publication – Day on which a measure came to the knowledge of the applicant – Subsidiary character – Measures, which, in accordance with a consistent practice of the institution, are published in the Official Journal
(Art. 263, sixth para., TFEU)
(see paragraphs 36-44)
State aid – Concept – Assessment according to the criterion of the private investor – Assessment of all factors relevant to the transaction at issue and its context – Measure adopted by the Member State in its capacity as a public authority
(Art. 107(1) TFEU)
(see paragraphs 50-54, 61-63)
State aid – Concept – Aid from State resources – Concept of State resources – Exemption from network charges granted to large energy consumers – Offsetting the losses of revenue of network operators by the introduction of a surcharge collected from end users or electricity suppliers – Included – Conditions – Levy assimilated to a parafiscal charge – Existence of State control over the entire mechanism for collecting the surcharge and allocating the proceeds
(Art. 107(1) TFEU)
(see paragraphs 85-97, 109-148)
State aid – Prohibition – Derogations – Aid capable of being regarded as compatible with the internal market – Aid to remedy serious disturbance in the economy of a Member State – Discretion of the Commission – Judicial review – Limits – Burden of proof on the Member State
(Art. 107(1) and (3)(b) TFEU)
(see paragraphs 152-166)
State aid – Prohibition – Derogations – Aid capable of being regarded as compatible with the internal market – Assessment in relation to Article 107(3)(c) TFEU – Criteria
(Art. 107(1) and (3)(c) TFEU)
(see paragraphs 169-191)
State aid – Recovery of unlawful aid – Infringement of the principle of non-discrimination – None
(see paragraphs 194-210)
State aid – Recovery of unlawful aid – Aid granted in breach of the procedural rules of Article 108 TFEU – Legitimate expectations entertained by the recipients – None save in exceptional circumstances
(see paragraphs 213-219)
Résumé
With effect from 2011, the Federal Republic of Germany granted certain large energy consumers full exemption from network charges (‘the exemption at issue’). The costs involved in that exemption were borne by the transmission system operators.
In order to offset the losses in revenue resulting from the exemption at issue, the Bundesnetzagentur (BNetzA, the Federal Agency for Networks, Germany), by decision of 14 December 2011 (‘the 2011 BNetzA decision’), introduced a financing mechanism, which entered into force in 2012. Under that mechanism, 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.
The amount of the surcharge was calculated each year on the basis of a methodology set out by the BNetzA. The amount for 2012, the first year the system was in operation, was determined directly by the BNetzA on a flat-rate basis. Moreover, since the mechanism did not apply to the costs of the exemption at issue for 2011, each transmission system operator and distribution system operator, depending on the network level to which the beneficiaries were connected, had to bear the losses in respect of the exemption for that year.
Since the exemption at issue was subsequently declared null and void by decisions of the German courts, it was abolished as of 1 January 2014.
By decision of 28 May 2018 (
1
) (‘the contested decision’), the Commission, having received several complaints, concluded that the Federal Republic of Germany had unlawfully granted, during the period from 1 January 2012 to 31 December 2013, State aid in the form of the exemption at issue, thus enabling large energy consumers to avoid paying network charges.
Covestro Deutschland AG (‘the applicant’) brought an action for annulment of the contested decision. The Court, although it declares the action admissible, dismisses it, confirming, inter alia, that the resources generated by the surcharge at issue were State resources and, hence, the existence of aid granted through State resources.
Findings of the Court
In the first place, the Court rejects the plea of inadmissibility put forward by the Commission, in which the latter alleges that the action for annulment was lodged out of time since the contested decision had come to the knowledge of the applicant well before it was published in the Official Journal of the European Union.
In that regard, the Court states that it follows from the wording of the sixth paragraph of Article 263 TFEU that the criterion of the date on which the measure came to the knowledge of the applicant as the starting point of the period for bringing an action is subsidiary to the criteria of publication or notification of the measure. Even though publication of the contested decision is not a precondition for it to come into effect, since Commission decisions closing a State aid investigation procedure under Article 108(2) TFEU are published in the Official Journal, the applicant could legitimately expect the contested decision to be published and was entitled to take the date on which the contested decision was published as the starting point of the period for bringing an action.
As regards, in the second place, classification of the surcharge at issue as aid granted through State resources, the General Court notes that, in order to determine whether such a measure of support constitutes State aid, the case-law of the Court of Justice (
2
) relies on two main factors: first, the existence of a compulsory charge imposed on end consumers or customers, normally classified as a ‘charge’, and more specifically as a ‘parafiscal charge’, and, secondly, State control over the administration of the system, in particular through State control over the funds or the (third party) administrators of those funds.
In that regard, the Court explains that, in essence, these are two factors which together form an alternative. The cases in which the existence of State resources has been recognised are characterised by the fact that, in one way or another, the State exercised control over the resources in question.
In the light of that explanation, the Court examines first whether the surcharge at issue was in fact a compulsory charge and, hence, could be assimilated to a parafiscal charge, and secondly whether the State possessed control over the funds collected or over the bodies responsible for administering them.
In the context of that examination, the Court finds that the surcharge at issue is imputable to the State, a finding that is without prejudice to the question of whether the 2011 BNetzA decision may be considered to be a decision that is ultra vires according to German law, and to the question of the annulment of that decision by the German courts, that decision having been actually applied during the relevant period.
As regards whether the surcharge at issue was compulsory, the Court notes that that surcharge, introduced by an administrative authority through a regulatory measure, was legally binding on the persons ultimately liable for payment, being the network users, that is to say the suppliers themselves and the end consumers directly connected to the network, and not the other end consumers. The 2011 BNetzA decision required distribution system operators to pass on to those consumers the extra costs related to the surcharge at issue, so that surcharge constitutes a parafiscal charge and therefore involves the use of State resources.
As regards State control over the administration of the surcharge mechanism, the Court finds, in addition, that, first, there is an analogy between the surcharge at issue and the extra costs related to the exemption at issue and that, secondly, the network operators acted as mere intermediaries in the implementation of a mechanism totally governed by State provisions. Consequently, there was State control over the entire mechanism for collecting and allocating the surcharge at issue. The distribution system operators were required to collect from the network users, including the end consumers, the surcharge, as calculated by the BNetzA (for the year 2012) or according to the methodology set out by the BNetzA (for the year 2013). Moreover, the proceeds were allocated exclusively to pursuing the objectives of the scheme, under the legislative and regulatory provisions which stated that those proceeds should be paid to the transmission system operators to offset the extra costs related to the exemption at issue.
In the light of the foregoing, the Court finds that the surcharge at issue constitutes a parafiscal charge or a compulsory charge, the amount of which was set by a public authority (for the year 2012) or according to a methodology imposed by that authority (for the year 2013), which pursues public-interest objectives, that it was imposed on the network operators according to objective criteria and that it was collected by those operators according to rules laid down by the national authorities, and therefore it constitutes a measure granted through State resources.
(
1
)	Decision (EU) 2019/56 on aid scheme SA.34045 (2013/c) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 StromNEV [2011] (OJ 2019 L 14, p. 1).
(
2
)	In particular, judgments of the Court of Justice of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), and of 15 May 2019, Achema and Others (C‑706/17, EU:C:2019:407).