Provisional text
OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered on 23 October 2025 (1)
Case C‑242/24 P
European Commission
v
Federal Republic of Germany
( Appeal – State aid – Aid granted by certain provisions of the German Law on combined heat and power generation – National legislation imposing an obligation on distribution system operators to obtain supplies from producers of electricity from renewable energy sources at a price plus a premium which may be accompanied by a bonus – Concept of ‘State aid’ – Measures granted through State resources )
Introduction
1.        By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union
of 24 January 2024, Germany v Commission (T‑409/21, ‘the judgment under appeal’, EU:T:2024:34) by which the General Court annulled Commission Decision C(2021) 3918 final of 3 June 2021 concerning State aid SA.56826 (2020/N) – Germany – 2020 reform of support for cogeneration and State aid SA.53308 (2019/N) – Germany – Change of support to existing CHP plants (Paragraph 13 of the Gesetz zur Neuregelung des Kraft-Wärme-Kopplungsgesetzes (Law reforming the Law on combined heat and power generation) of 21 December 2015 (BGBl. 2015 I, p. 2498); ‘the KWKG 2016’)) (‘the decision at issue’), whereby the Commission found that various measures (‘the measures at issue’) to support the production of electricity by combined heat and power (‘CHP’) plants constitute State aid.
2.        In the present case, the Court is called upon to provide clarification as to the interpretation of the condition of ‘State resources’, as laid down in Article 107(1) TFEU. In particular, it will have the opportunity to rule on whether the scope of the judgment of 13 March 2001, PreussenElektra (C‑379/98, ‘the judgment in PreussenElektra’, EU:C:2001:160), which provides the legal standard for ruling out the commitment of State resources, must be interpreted in a manner stricter than that which is apparent from the judgment under appeal.
The background to the dispute, the decision at issue and the judgment under appeal
3.        The background to the dispute is set out in paragraphs 2 to 26 of the judgment under appeal. It can be summarised as follows.
The measures at issue and their financing
4.        On 28 January 2019 and 23 September 2020, the German authorities notified the Commission of a series of measures amending the KWKG 2016, some of which were further amended over the course of December 2020. All of those measures correspond to the legislation on the support of CHP in force since 1 January 2021 (‘the KWKG 2020’), to which a final amendment relating to the reduction of the surcharge for hydrogen producers as provided for in Paragraph 27 of the KWKG 2020 was added.
5.        The objective of the KWKG 2020 is, inter alia, to improve energy efficiency and the protection of the climate and the environment by increasing the net electricity production of CHP electricity by 2025.
6.        To that end, it provides for a series of measures to provide support (i) to the production of electricity by newly built, modernised and retrofitted high-efficiency CHP installations; (ii) to energy-efficient district heating and cooling networks; (iii) to heating and cooling storage facilities; (iv) to the production of electricity by cogeneration in existing highly efficient gas-fired CHP installations in the district heating sector (together, ‘the CHP support measures’), and (v) to a measure reducing the surcharge for hydrogen producers.
7.        Those measures take the form of either a premium, which may be accompanied by a bonus, in addition to the proceeds of the sale at market price of the electricity produced, or, solely in the case of the manufacture of industrial gases, in which the production of hydrogen accounts for the majority of the total added value, a reduction in the surcharge that can be recovered from hydrogen producers by the network operators.
8.        The support is granted either by means of invitations to tender organised by the national regulator, the Bundesnetzagentur (Federal Network Agency, Germany; ‘the BNetzA’), or directly on the basis of the KWKG 2020. In the latter case, the beneficiaries are automatically entitled to receive that
support when they meet the eligibility criteria, which is verified by the Bundesamt für Wirtschaft und Ausfuhrkontrolle (Federal Office for the Economy and the Control of Exports, Germany; ‘the BAFA’) upon application by the beneficiaries. If they meet all the criteria, the BAFA issues a document confirming that eligibility.
9.        In the present case, the mechanism for financing the measures at issue, which the General Court describes as consisting of two levels, is of particular importance.
10.      At the first level, the distribution or transmission network operator concerned is required by law to pay the operators of CHP plants, storage installations and district heating and cooling networks (‘the operators of CHP plants and other facilities connected to CHP’ or ‘the CHP beneficiaries’) connected to its network the amounts provided for in the KWKG 2020 and those beneficiaries are entitled to receive them (‘the KWKG price supplement’).
11.      In order for each network operator to be compensated for the extra costs resulting from its obligations under the KWKG 2020, that law put in place a mechanism according to which those extra costs are spread evenly between network operators (distribution or transmission) in proportion to the consumption of consumers connected to their network, then compensated by means of the 2020 KWKG surcharge.
12.      Thus, first, the transmission system operators reimburse the distribution system operators for the total amount which they have paid to the CHP beneficiaries. Secondly, the transmission system operators calculate the total amount of payments they have made to distribution system operators and CHP beneficiaries. That amount is then divided by the total electricity consumption. The result represents the average cost per kilowatt hour (KWh) of electricity for the measures at issue (‘the KWKG surcharge’). Distribution system operators are required to pay transmission system operators the KWKG surcharge for each KWh of electricity they have distributed to end customers.
13.      The amount of the KWKG surcharge is calculated each year by the transmission system operators according to the methodology laid down in the KWKG 2020 and under the supervision of the BAFA and the BNetzA. It is expressed as a uniform price per kWh of electricity consumed, subject to the reduced rate from which certain categories of users benefit.
14.      At the second level, the network operators are entitled, but are not required by law, to pass on the KWKG surcharge when calculating the network charges which they levy on their customers, the end users of electricity, for each kWh of electricity supplied in Germany by the electricity network. By way of derogation, the transmission system operators are entitled to levy a reduced KWKG surcharge on large energy consumers such as hydrogen producers.
15.      The KWKG 2020 establishes an annual budgetary limit of EUR 1.8 billion for the measures at issue and therefore for the total KWKG surcharge.
The decision at issue
16.      On 3 June 2021, the Commission adopted the decision at issue.
17.      By that decision, the Commission characterised the measures at issue as State aid within the meaning of Article 107(1) TFEU and found, inter alia, that they were financed through State resources. In particular, in recitals 220 and 221 of the decision at issue, the Commission concluded that the CHP support measures were financed from the proceeds of a de jure mandatory levy imposed by the State and managed and apportioned in accordance with the provisions of the legislation. Furthermore, it considered that the measure relating to the reduction of the KWKG surcharge for hydrogen producers constituted a renouncement of State resources.
18.      The Commission nonetheless found that the measures at issue were compatible with the internal market under Article 107(3)(c) TFEU and therefore decided not to raise objections.
The judgment under appeal
19.      The Federal Republic of Germany brought an action before the General Court seeking annulment of the decision at issue, in support of which it raised a single plea in law, alleging incorrect interpretation and application of Article 107(1) TFEU, in that the Commission had found that the undertakings concerned by the measures at issue benefited from aid granted through State resources.
20.      In paragraph 36 of the judgment under appeal, the General Court recalled the case-law arising from the judgment of 12 January 2023, DOBELES HES, (2) according to which funds financed by a levy or other compulsory surcharges under national legislation, managed and apportioned in accordance with that legislation (first criterion) and sums that constantly remained under public control, and therefore available to the competent national authorities (second criterion) could be categorised as State resources within the meaning of Article 107(1) TFEU. Those two criteria are alternative criteria of the concept of ‘State resources’ within the meaning of Article 107(1) TFEU. (3)
21.      The General Court first analysed, in paragraphs 41 to 118 of the judgment under appeal, whether the CHP support measures were financed through State resources and then examined, in paragraphs 119 to 126 of that judgment, whether that was the case for the measure relating to the reduction of the KWKG surcharge for hydrogen producers.
22.      As regards the CHP support measures, in the first place, the General Court examined, in paragraphs 56 to 90 of the judgment under appeal, whether the KWKG price supplement
constituted a levy or other mandatory surcharge within the meaning of the first criterion. In the second place, in paragraphs 91 to 100 of that judgment, it examined whether the amounts of that surcharge or of that price supplement
remained under constant public control, within the meaning of the second criterion. In the third place, in paragraphs 101 to 117 of that judgment, it rejected the Commission’s arguments relating to the application in the case at hand of the case-law resulting from the judgment in PreussenElektra.
23.      As regards the first criterion, in paragraph 67 of the judgment under appeal, the General Court first of all held, inter alia, that the mandatory payments by the network operators to the CHP beneficiaries, which took place at the ‘first level’ of the supply chain, concerned only the allocation of funds in accordance with the law in so far as those operators were required by law to grant financial support to the CHP beneficiaries. They did not, however, give any indication of the origin of the funds used by the network operators. According to the General Court, to find that those payments constitute a levy or another mandatory surcharge within the meaning of the relevant case-law would amount to considering that the financing of the CHP support measures is no different from the grant of the funds to the beneficiaries.
24.      Next, in paragraphs 68 to 71 of that judgment, the General Court distinguished the situation in the present case, in which the network operators have no legal obligation to pass on the KWKG surcharge to their customers at the second level of the supply chain, from those examined in the case-law relied on by the Commission in support of its decision. (4)
25.      In addition, in paragraphs 71 and 72 of that judgment, the General Court held that the Commission had not explained at what time and by whom the management of the funds was carried out.
26.      Lastly, in paragraphs 73 to 77 of that judgment, the General Court stated that it could not be maintained that the State appropriated to itself the resources of the network operators, since the latter were not necessarily the ultimate debtors of the financial burden occasioned by the CHP support measures. The fact that the network operators were able to pass on the costs of those measures to their customers was sufficient to rule them out as being the ultimate debtors of that burden.
27.      Having regard to the second criterion, namely State control over the resources in question, in paragraph 93 of the judgment under appeal the General Court found that the Commission had not clearly and expressly examined it in the decision at issue, since the two criteria at issue were alternative criteria.
28.      In any event, in paragraphs 98 to 100 of that judgment, the General Court held that that second criterion was not met in the present case. The fact that the funds used were allocated exclusively by law to the performance of certain tasks tended rather to show, in the absence of any other evidence to the contrary, that the State was specifically not entitled to dispose of those funds, that is to say that the State was not able to decide on an allocation that differed from that laid down in the law.
29.      As regards the case-law resulting from the judgment in PreussenElektra, the General Court, in paragraphs 101 to 117 of the judgment under appeal, decided that the Commission had wrongly considered that that case-law was not applicable in the present case on the ground that the CHP support measures did not consist of a ‘mere price regulation’ within the meaning of that judgment. In order to do so, the Commission should have established, irrespective of whether the CHP support measures constituted a measure of ‘mere price regulation’, that the advantage for the CHP beneficiaries was not granted by the network operators, which are private entities, through their own financial resources, but that those network operators were appointed by the State to manage a State resource.
30.      Having concluded that the CHP support measures were not financed by State resources, in paragraphs 119 to 126 of the judgment under appeal the General Court inferred that the measure relating to the reduction of the KWKG surcharge for hydrogen producers could not amount to a renouncement of State resources.
31.      On the basis of that reasoning, the General Court upheld the Federal Republic of Germany’s single plea in law and annulled the decision at issue.
The procedure before the Court of Justice and the forms of order sought
32.      On 3 April 2024, the Commission lodged an appeal against the judgment under appeal. The Commission requests that the Court should set aside the judgment under appeal and dismiss the action brought at first instance as unfounded.
33.      In the alternative, it asks the Court, in respect of the measures referred to in recital 198(a) to (d) of the decision at issue, namely the CHP support measures, to set aside the judgment under appeal and to dismiss the action brought at first instance as unfounded.
34.      In any event, the Commission requests that the Federal Republic of Germany be ordered to pay the costs of the proceedings at first instance and on appeal.
35.      The Federal Republic of Germany contends that the Court should dismiss the appeal, uphold the judgment under appeal and order the Commission to pay the costs.
36.      The parties presented oral argument at the hearing on 11 June 2025.
The appeal
37.      In support of its appeal, which relates only to the CHP support measures, the Commission relies on a single ground of appeal, alleging an error of law in the interpretation of the condition relating to ‘State resources’ in Article 107(1) TFEU and in the legal characterisation of the facts. That ground of appeal consists of two parts. Before examining them, I nevertheless consider it necessary to make some preliminary observations on the relevant legal framework.
Preliminary observations
38.      It should be recalled that classification as State aid requires four conditions to be satisfied, including that there be intervention by the State or through State resources. It has long been established that such a condition is satisfied if, first, the measure is granted directly or indirectly through those resources and, second, the measure is imputable to the Member State concerned. (5)
39.      The condition relating to imputability requires examining whether the public authorities were involved in the adoption of the measure at issue. It is common ground that any measure established by legislation is, by that very fact, imputable to the Member State concerned. (6)
40.      As regards the condition that the advantage must be granted through State resources, which is the subject of the single ground of appeal put forward by the Commission in the present case, the Court has repeatedly held that that condition requires a specific financial burden on the State budget. (7) It has then specified that such a financial burden exists not only in the case of a positive transfer of public funds, but also a waiver of revenue which would normally have been paid to the State, (8) and that it is not necessary for that burden to be proved, since the creation of a concrete risk that it might arise in the future is sufficient. (9)
41.      Finally, the Court has supplemented the ‘dematerialisation’ of the transfer of State resources resulting from that case-law by holding that the concept of ‘State resources’ covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. According to the Court, even if the sums granted by means of a financial support measure are not permanently held by the Treasury, those sums may also constitute State resources where they constantly remain under public control, and therefore available to the competent national authorities. (10)
42.      The limit of the criterion of public control was then set out the judgment in PreussenElektra. The questions referred to the Court in the case giving rise to that judgment concerned Paragraph 4(2) and (3) of the German Law on feeding electricity from renewable energy sources into the public grid. Under that provision, electricity supply undertakings were obliged to purchase the electricity produced in their area of supply from renewable energy sources at minimum prices based on the average sales price per KWh of electricity supplied to all final customers by electricity supply undertakings.
43.      With regard to the question whether State resources were thus mobilised, the Court answered in the negative. First of all, it clarified that the distinction made in Article 107(1) TFEU between ‘aid granted by a Member State’ and aid granted ‘through State resources’ is intended merely to bring within the definition of ‘State aid’ both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State. (11) On the basis of that finding, it concluded that the obligation imposed on private electricity supply undertakings to purchase electricity produced from renewable energy sources at fixed minimum prices did not involve any direct or indirect transfer of State resources to undertakings which produce that type of electricity. (12)
44.      The legal test arising from that judgment is the dividing line between national measures of a purely regulatory nature and aid measures, with only the latter involving the use of State resources.
45.      More recently, the Court has been called upon to examine the condition of ‘State resources’ in a series of cases concerning national schemes designed to support the production of electricity, in particular that from renewable energy sources, financed by means of price surcharges imposed by the State on purchasers of electricity. As regards the condition that the advantage must be granted through State resources, the Court applied a criterion according to which funds from private sources must be classified as State resources if they come from compulsory contributions imposed by the legislation of the Member State concerned and are managed and apportioned in accordance with that legislation. (13)
46.      In the judgment in DOBELES HES, the Court stated that the latter criterion and the criterion of public control are the two alternative criteria of the concept of ‘State resources’. (14)
The first part of the single ground of appeal
Summary of the arguments of the parties
47.      By the first part, the Commission submits that the General Court erred in law in holding that the financial burden of the CHP support measures assumed by the distribution system operators does not constitute a levy or other compulsory surcharge within the meaning of the case-law of the Court of Justice and that, accordingly, State resources were not mobilised in the present case.
48.      It considers that the General Court’s conclusion is based on three findings and that all three are vitiated by an error of law.
49.      First of all, according to the Commission, in paragraphs 65 to 70 and 89 of the judgment under appeal, the General Court held that, in order to establish the existence of State resources, it is necessary to avoid any confusion between the use and origin of funds. Thus, the person liable to pay the surcharge must be distinguished from the person who collected that surcharge and paid it as aid to a third person. Since, as in the present case, those two persons coincide, as each distribution network operator is liable for the KWKG surcharge and is responsible for paying the KWKG price supplement
to the CHP beneficiaries, there were no State resources. By contrast, the Commission takes the view that there is nothing in Article 107(1) TFEU or in the case-law referred to by the General Court to authorise the requirement that there be a triangular relationship between the person liable to pay the surcharge, the person responsible for granting the aid and the beneficiary of that aid.
50.      Next, according to the Commission, in paragraphs 71, 72 and 88 of the judgment under appeal, the General Court criticised the Commission for failing to demonstrate that the funds generated by the KWKG price supplement were collected and managed in accordance with national legislation. The General Court regarded that collection and management as a condition additional to that relating to the existence of a mandatory surcharge. However, the Commission considers that, according to the case-law, it is not necessary for other conditions to be satisfied, such as the management and distribution of funds in accordance with national legislation, since the mere fact that it is a levy is sufficient to establish the existence of State resources.
51.      In the alternative, the Commission adds that, in any event, those first two findings of the General Court are based on another error, in that the General Court wrongly held that the mechanism for apportioning the financial burden between network operators could not be regarded as a ‘management of the funds’ on the ground that that mechanism merely put in place a procedure to offset the burden between network operators.
52.      Lastly, the Commission considers that, in paragraphs 73 to 76 of the judgment under appeal, the General Court held that the Commission had not demonstrated that the distribution network operators were in fact subject to a mandatory surcharge, since they had the opportunity to pass on the surcharge to their customers. In that regard, the Commission submits that, in accordance with the case-law, the mere possibility of passing on the additional costs to third parties is irrelevant for the purposes of establishing the existence of State resources.
53.      The Federal Republic of Germany disputes all of those arguments.
Assessment
54.      For the sake of clarity, my assessment will focus on the Commission’s criticisms of the various findings made by the General Court in order to conclude in the judgment under appeal that the decision at issue should be annulled.
–       The criticism of the General Court’s first finding
55.      As regards the first finding, it is appropriate to recall once again the premiss behind the reasoning developed by the General Court in that part of the judgment under appeal.
56.      After observing that the existence of a levy or other mandatory surcharge under the law makes it possible to establish that State funds were used to finance the advantage thus granted, the General Court stated that the mandatory payments by the network operators to the operators of plants and other CHP facilities, which took place at the ‘first level’ of the supply chain, do not give ‘any indication’ of the origin of the funds used by the network operators to grant financial support to the beneficiaries. According to the General Court, to conclude that the payments at issue constitute a levy or another mandatory surcharge would amount to considering that the financing of the CHP support measures is no different from the grant of the funds to the beneficiaries. (15)
57.      In the General Court’s view, the case-law relating to the measures of State aid designed to support the production of electricity, notably electricity from renewable energy sources, supports that finding. In the relevant judgments, the funds had their origin in the mandatory surcharges on electricity imposed on consumers of electricity, which showed that the measures were financed by the State. By contrast, the fact that the obligation imposed on the network operators to pay sums to the beneficiaries makes it possible only to establish the allocation of funds in accordance with the law. (16)
58.      That analysis by the General Court does not, in my view, lend itself to any objection.
59.      It should be noted that that case-law is based on a reading of the judgment in PreussenElektra according to which State resources within the meaning of Article 107(1) TFEU are not involved where financial support granted by the public authorities to specific undertakings is financed exclusively through the imposition of charges affecting private operators and is paid to the beneficiaries by those operators directly. It follows that the ‘first level’ of the supply chain, consisting of the legal obligation for network operators to purchase at a price plus a premium which may be accompanied by a bonus, cannot, on its own, involve the commitment of State resources.
60.      The need for a triangular relationship between the person liable to pay the surcharge, the entity responsible for granting the financial support and the beneficiary thereof is explained by the fact that the case-law makes the State origin of the funds used dependent on the existence of a mandatory surcharge at the ‘second level’ of the supply chain.
61.      The judgments in Essent, FVE Holýšov and DOBELES HES, cited by the Commission in support of its argument, in fact confirm that the General Court’s assessments on that point are well founded.
62.      In the case which gave rise to the judgment in Essent, the price surcharge at issue was paid by consumers to transmission system operators, collected by a company designated by law for that purpose and transferred to four domestic electricity generating undertakings by way of compensation for the costs incurred by those undertakings prior to the liberalisation of the market.
63.      In its judgment, the Court found that the surcharge in question constituted a charge imposed unilaterally by law on consumers who were required to pay it. Thus, that surcharge was a charge within the meaning of Articles 30 and 110 TFEU and therefore had its origin in a State resource within the meaning of Article 107(1) TFEU. (17)
64.      The case which gave rise to the judgment in FVE Holýšov concerned measures for producers of electricity generated from renewable energy sources in the form of a minimum purchase price or a bonus which represents a supplement to the market price paid by electricity network operators. Those measures were financed by a special levy, in the form of a surcharge paid by end customers to those operators.
65.      In its judgment on appeal, in response to an argument put forward by the appellants, the Court held that the fact that the funds come from a compulsory levy is sufficient to identify State resources. (18) However, a simple reading of the
paragraphs of the General Court’s judgment – which are targeted by the appellants’ argument – shows that the Court thus
intended to refute their criticism of the classification of that special levy as a parafiscal charge. (19)
66.      I infer from those judgments that any mandatory surcharge at the ‘second level’ of the supply chain, used to offset the additional costs resulting from the statutory obligation imposed on electricity network and transmission operators to purchase electricity at a given price at the ‘first level’ of the supply chain, is necessary in order to establish the existence of a charge or compulsory contribution satisfying the condition of ‘State resources’. However, such a statutory obligation involves the commitment of State resources only if it is combined with that mandatory surcharge. The summary judgment in DOBELES HES, which concerns a two-level financing system similar to that at issue in the present case, confirms that reading. (20)
67.      In other words, contrary to what the Commission argues in its appeal, in the cases falling within that line of case-law, the ‘second level’ is not merely a matter of fact, but is a decisive factor in the Court’s legal assessment.
68.      In the light of the foregoing, it cannot be maintained, in my view, that the first finding resulting from paragraphs 65 to 70 of the judgment under appeal is vitiated by an error of law.
–       The criticism of the General Court’s second finding
69.      With regard to the General Court’s second finding, it should be recalled that the Commission criticises it for having assumed that the KWKG price supplement
must not only constitute a mandatory surcharge, but must also be managed in accordance with the national legislation. (21)
70.      The Commission disagrees with the General Court’s interpretation of paragraph 35 of the judgment in DOBELES HES, according to which ‘funds must thus be regarded as “State resources” … if they derive from compulsory contributions imposed by the legislation of the Member State concerned and are managed and apportioned in accordance with that legislation’. In the Commission’s view, that paragraph, and the case-law to which it refers, must be understood as meaning that the mere fact of being a levy or mandatory surcharge is sufficient to establish the existence of State resources within the meaning of Article 107(1) TFEU. There are two main reasons for the Commission’s argument.
71.      In the first place, the interpretation which it advocates is consistent with the case-law subsequent to the judgment in Essent, in particular paragraph 46 of the judgment in FVE Holýšov.
72.      I do not agree.
73.      Paragraph 46
of the judgment in FVE Holýšov, which has already been considered in point 65 of the Opinion, is clearly intended to clarify the meaning of paragraphs 65 to 72 of the judgment in EEG 2012, in which the Court had examined whether the amounts generated by the payment which the electricity transmission system operators were entitled to require electricity suppliers to pay involved a State resource which can be assimilated to a levy. The Court’s answer was in the negative on the ground that the legislation at issue did not require suppliers to pass on the amounts thus paid to the final customers. (22)
74.      In
paragraph 46 of the judgment in FVE Holýšov, the Court stated that the fact of coming from a levy which includes compulsory passing on is sufficient to identify State resources. This has already been mentioned above. It should be added that the Court thus rejected the interpretation, put forward by the appellants in that case, that a payment obligation unilaterally imposed by the State, combined with a corresponding reduction in the State budget, involves the commitment of State resources, (23) in the absence of compulsory passing on downstream in the supply chain.
75.      The rejection of that interpretation was confirmed in the judgment in WEPA Hygieneprodukte and Others v Commission. (24) In the case which gave rise to that judgment, the appellants claimed that the General Court should have applied a concept of ‘charge’ understood as the unilateral imposition, by an act of public authority, of the obligation to pay a surcharge and a criterion relating to the existence of a sufficiently direct link between the State budget and the surcharge at issue. In that regard, the Court held, inter alia, that the case-law relating to compulsory charges or contributions imposed on end consumers or customers ‘[does not refer] to such a concept or criterion’. (25)
76.      In summary, it cannot be argued that the mandatory payments by the network operators to undertakings producing electricity from renewable energy sources, which take place at the ‘first level’, are capable of mobilising State resources merely because they were unilaterally imposed by law. On the contrary, it may be established that resources are State resources only by virtue of the existence a compulsory passing on to final customers, at the ‘second level’, of the amount corresponding to those payments.
77.      Once that mandatory surcharge is identified, the logic of public control underlying that case-law implies that it is necessary to verify that the sums thus collected are used for the purpose of granting an advantage to the beneficiaries in accordance with the legislation.
78.      It follows that, where the national legislation concerned includes a ‘first level’ as in the present case, the condition relating to the management and distribution of funds financed by a mandatory contribution in accordance with national legislation is essential in order for those funds to be classified as ‘State resources’ within the meaning of Article 107(1) TFEU.
79.      In the second place, the Commission takes the view that, in the judgment in Essent, to which paragraph 34 of the judgment in DOBELES HES refers, the Court reproduced in full and without further qualification the concept of ‘charge’ or ‘taxation’ within the meaning of the current Article 30 TFEU (charges having equivalent effect to customs duty) and Article 110 TFEU (discriminatory internal taxation) and concluded that the price surcharge at issue was akin to a charge and therefore had its origin in State resources. The Commission observes that that concept requires only that ‘the pecuniary charge is borne by the economic agent by virtue of a unilateral measure adopted by the authorities’. (26)
80.      That argument is not such as to invalidate the conclusion I reached in point 78 of this Opinion.
81.      It should be noted that, in the judgment in Essent, which predates the reference to the criterion relating to the existence of a charge or compulsory contribution in that area, (27) the paragraphs which follow the reasoning referred to by the Commission reveal the need for the funds to be managed and distributed in accordance with State legislation. It is apparent from those paragraphs that, in accordance with the national legislation, the charge at issue was paid to the network operator and then paid to the statutorily designated company, which was not entitled to use those funds for purposes other than those provided for by that legislation. (28)
82.      Therefore, it cannot be inferred from the judgment in Essent that whether the resources are State resources depends exclusively on the exercise of State authority inherent in the imposition of a payment obligation, irrespective of whether the funds resulting from such an obligation are managed and distributed in accordance with the legislation of the Member State concerned.
83.      In any event, I do not think that the fact that Articles 30 and 110 TFEU, on the one hand, and Article 107 TFEU, on the other, relate in the present case to fiscal action by the State obstructing the internal market can justify a converging interpretation of the concept of ‘charge’. It must be borne in mind, in that regard, that the first two provisions have a different objective from the latter. While Articles 30 and 110 TFEU seek to preserve the free movement of goods and competition between domestic products and imported products, Article 107 TFEU has the objective, more generally, of preserving competition between undertakings by prohibiting any aid granted by a Member State which satisfies the conditions set out therein.
84.      Moreover, the Commission submits that the condition relating to the management and distribution of the funds concerned in accordance with State legislation cannot be construed as an independent condition in so far as it means that the initiative to introduce a compulsory surcharge must be taken by the State and not by two private-law associations. It cites, in that regard, the judgments in Pearle and Others and Doux Élevage and Coopérative agricole UKL-ARREE. (29)
85.      It is true that, in the judgments delivered in those two cases, the Court held that a payment obligation made binding on the person liable for payment by means of State intervention did not involve the use of State resources on the ground that that obligation had not been established by the State.
86.      The interpretation advocated by the Commission nevertheless confuses the condition that an advantage must be granted ‘through State resources’ and that of imputability to the State. It seems to me that the condition relating to the management and distribution of funds in accordance with State legislation requires verification not only of whether the procedures for allocating the financial support are provided for, upstream, by that legislation, but also whether those same procedures are such as to exclude any possibility that the funds concerned may be used for purposes other than the one provided for by that legislation.
87.      It follows that the Commission was wrong to maintain that the General Court erred in law in holding, first, that the condition relating to the management and distribution of funds in accordance with national legislation constitutes a necessary condition for the commitment of State resources and, secondly, that the initiative of the German State to introduce the KWKG price supplement was not sufficient to prove that its resources were committed.
88.      In the light of the foregoing, I do not share the Commission’s view that paragraphs 71, 72, 80 to 85, 88  and 97 to 99 of the judgment under appeal are vitiated by those two errors of law.
–       The criticism, in the alternative, of the General Court’s first and second findings
89.      It should be recalled that the Commission submits, in the alternative, that the General Court’s first two findings are based on an incorrect legal characterisation of the facts, in that the General Court wrongly held that the mechanism for apportioning the financial burden between network operators provided for in the KWKG could not be regarded as a ‘management of the funds’ on the ground that that mechanism merely put in place a procedure to offset the burden between network operators. (30)
90.      According to the Commission, first, the financial burden on the distribution system operators does not arise from payment of the KWKG price supplement, for which those operators were reimbursed by the transmission system operators, but from the payment of the KWKG surcharge which the distribution system operators pay to the transmission system operators. The latter use the revenue from that surcharge to offset the additional costs incurred in the payment of that price supplement to the
CHP beneficiaries. Secondly, the General Court is said to have failed to have regard to the role of the BAFA and the BNetzA in selecting the beneficiaries and setting the amount of the KWKG price supplement
in accordance with the law. Thus, such a mechanism allows network operators to ‘manage and apportion’ the financial burden of the CHP support measures.
91.      That error on the part of the General Court is said to be such as to lead to the judgment under appeal being set aside in so far as, if, as the General Court stated in its first finding, a triangular relationship between the person liable for the levy or the mandatory contribution, the entity responsible for granting the financial support and the beneficiary of that support were required, that requirement would be satisfied in the present case. The role of the transmission system operators in the compensation mechanism establishes that triangular relationship.
92.      As regards the plea of inadmissibility raised by the Federal Republic of Germany against that
criticism, I would merely note that, contrary to what this Member State claims, that relates to the finding of the General Court according to which the flow of payments between the transmission system operators and the distribution system operators does not constitute management of funds within the meaning
of the case-law relating to the concept of charge or mandatory contribution. However, it is settled case-law that the assessment of the legal classification
which has been attributed to national law by the General Court under a provision of EU law constitutes a question of law, falling within the jurisdiction of the Court of Justice at the appeal stage. (31)
93.      As for the validity of the present criticism, I am of the opinion that the reference to ‘management of the funds’ assumes that the entity collecting the levy or mandatory contribution is required by law to carry out some kind of activity to manage the funds financed by that levy. It is precisely that element that is lacking here.
94.      Such a management activity is not carried out by the network operators in the context of the mechanism for apportioning the financial burden, since the funds at issue cannot be regarded as deriving from a levy or a mandatory contribution. Nor can that activity be carried out by the entities receiving payment of the KWKG price supplement, namely the operators of plants and other CHP facilities, since those entities are the beneficiaries of the financial support in question.
95.      It follows that, in paragraphs 71 and 72 of the judgment under appeal, the General Court did not err in law in the legal characterisation of the facts.
–       The criticism of the General Court’s third finding
96.      The Commission’s criticism of the General Court’s third finding cannot succeed either.
97.      The General Court was right to hold that, in order to prove the existence of a mandatory contribution, it was not sufficient for the Commission to demonstrate that the persons liable for payment had the possibility of passing on the economic burden arising from that contribution to third parties. In that regard, I merely refer to my analysis in relation to the General Court’s first two findings.
98.      In my view, therefore, there is no error of law in the findings made by the General Court in paragraphs 73 to 76 of the judgment under appeal.
The second part of the single ground of appeal
Summary of the arguments of the parties
99.      In its appeal, the Commission submits, in essence, that the General Court erred in law in its interpretation of the judgment in PreussenElektra.
100. More specifically, the Commission criticises it for holding that the scope of that judgment is not limited to cases in which the State intervenes by regulating the market price of a transaction, but also covers situations in which the State mandates a direct payment obligation between private parties, without such obligations being based on any kind of transactional relationship.
101. The Commission takes the view that the judgment in PreussenElektra does no more than rule out the possibility that price regulation by a Member State may be regarded as committing State resources. Thus, it applies only to the fixing of minimum prices for the purchaser, or maximum prices for the seller, and thus to the relationship of consideration between individuals. In the present case, the German legislation does not merely provide for such price regulation. The network operators are required to pay
the KWKG price supplement
to the CHP beneficiaries, irrespective of any purchase of electricity.
102. Lastly, the Commission refers to the case-law on the concept of ‘charge’ within the meaning of Article 30 TFEU and in accordance with Article 110 TFEU, from which it may be inferred that the decisive factor is whether the payment constitutes consideration for a specific service actually and individually rendered to the economic operator, in which case that payment does not fall within the concept of a ‘charge’, or whether it is used to finance the performance of a public service task, in which case it does.
103. The Federal Republic of Germany contests all the Commission’s arguments.
Assessment
104. It should be noted at the outset that that part of the single ground of appeal put forward by the Commission is a criticism of the whole of the reasoning followed by the General Court in paragraphs 101 to 118 of the judgment under appeal.
105. In particular, the Commission criticises the General Court for having held that the scope of the judgment in PreussenElektra includes exclusively financial support measures financed by the imposition of charges on private undertakings and paid to the beneficiaries directly by those undertakings. Thus, it is said to have overlooked the fact that such a measure must consist of a regulation of market prices. The Commission therefore regards the latter as a subsequent element forming part of the legal test established in the judgment in PreussenElektra.
106. In support of that interpretation, the Commission cites the judgments in EEG 2012 and ENEA. (32) It considers that, in those judgments, the national measures at issue, which contained respectively the obligation to purchase products at a certain price or in certain quantities, constituted a regulation of market prices. That factor justified a finding that there was no commitment of State resources.
107. However, it seems to me that those judgments do not support the interpretation of the Commission for the reasons set out in the following points.
108. In the case which gave rise to the judgment in EEG 2012, the legislation at issue imposed on distribution system operators the obligation to pay producers of electricity from renewable energy sources a statutory payment or a market premium and to transmit that electricity to the transmission system operators. In return, the interregional upstream operators of high and very-high-voltage transmission systems were required to pay the local low or medium-voltage distribution system operators the equivalent of the payments and market premiums received by those producers from the latter operators
and to sell the electricity fed into their network on the market. If the price thereby obtained did not enable them to cover the financial burden resulting from the statutory obligation to pay for that electricity at the rates laid down by law, the TSOs were entitled to require the suppliers to the final customers to pay them the difference (‘the EEG surcharge’). Those suppliers were entitled to pass on to final customers the amounts paid under that surcharge. (33)
109. As already stated above, the Court considered that a mere entitlement to pass on the amounts paid in respect of the EEG surcharge was not sufficient for the purposes of classifying that surcharge as a ‘levy’. Thus, it ruled only on the ‘second level’ of the electricity supply chain, without finding that the ‘first level’ of that chain was characterised by a regulation of market prices. (34)
110. In the case which gave rise to the judgment in ENEA, the legislation at issue in the main proceedings established a support scheme for electricity produced by cogeneration by imposing an obligation to purchase. That obligation consisted of requiring that a quota of the total annual sales of electricity by undertakings selling electricity to end users, in this instance 15%, be produced by cogeneration. The president of the national energy regulatory authority set the maximum tariffs for the sale of electricity, so that, in certain circumstances, electricity suppliers purchased electricity produced by cogeneration at a higher price than that charged to end users, which resulted in extra costs for the suppliers. (35)
111. In its judgment, the Court did not find that the measure in question constituted price regulation. Moreover, even if that measure fell into such a category, the negative answer regarding the commitment of State resources was based exclusively on the fact that ‘those extra costs cannot be passed on entirely to end users and are not financed by a compulsory contribution imposed by the State or by a full offset mechanism’. (36) In other words, in the absence of a mechanism for the compulsory passing on of those extra costs, the legal test of the judgment in PreussenElektra, which excludes the use of State resources, was applicable.
112. The Commission also submits that the General Court, in particular in paragraphs 108, 109 and 114 of the judgment under appeal, adopted an excessively broad interpretation of the case-law relating to support schemes for the production of electricity.
More precisely, that criticism is directed at the finding that the decisive factor for concluding that State resources were committed is the fact that the private undertakings concerned ‘are appointed by the State to manage a State resource, and not merely bound by an obligation to purchase using their own financial resources’. (37) According to the Commission, the concept of ‘obligation to purchase’ in fact describes a regulation of market prices. However, that concept does not encompass a payment obligation incumbent on one private entity vis-à-vis another, irrespective of any contractual relationship between those two entities. If the Court had wished to cover such payment obligations, it might legitimately have been expected to state that those private entities are ‘not merely bound by an obligation to pay using their own financial resources’. (38)
113. I am not convinced by the semantic distinction between ‘obligation to purchase’ and ‘obligation to pay’. It seems clear to me that the Court’s use of the first expression is purely circumstantial, since the national schemes designed to support the production of electricity, examined in that case-law, typically include purchase obligations on operators in the electricity supply chain.
114. It should be added that, contrary to what the Commission maintains, that distinction does not appear to be supported by the judgment in Fallimento Esperia and GSE. (39)
115. In that judgment, the Court examined a national support scheme for the production of green energy intended to ensure the feed of a quota of green electricity into the national grid each year.
116. According to the Court, the free of charge provision of green certificates to national producers of green electricity was not liable to mobilise State resources, since the economic value of those certificates appeared to result solely from the legal obligation on certain producers and importers to buy them. Thus, the advantage represented by providing those green certificates free of charge appeared to be financed by resources from those producers or importers. (40) However, the Court also noted that that scheme required an entity controlled by the Ministry of Economic Affairs to buy green certificates in excess of those that certain operators were obliged to buy. That purchase thus seemed, in the Court’s view, to be carried out by an entity that can be assimilated to the State, on the basis of the mandate conferred on it by national legislation, using the revenue from a tariff component paid by consumers for that purpose. (41) Accordingly, the national scheme at issue involved a transfer of State resources within the meaning of Article 107(1) TFEU. (42)
117. The Commission takes the view that the first mechanism put in place by that scheme described an obligation to purchase an annual quota of green electricity and, therefore, a regulation of market prices. Nevertheless, the second mechanism went beyond mere regulation of market prices in that it required a public body controlled by the Ministry of the Economy and Finance to purchase surplus green certificates held by national producers using funds financed by a levy charged to consumers.
118. In the same vein, the KWKG price supplement in the present case cannot be regarded, in the Commission’s view, as a regulation of market prices on the ground that the German State requires the network operators to pay the operators of CHP plants an amount which is independent of any commercial transaction between those two entities.
119. I find it difficult to accept the argument that, in the judgment in Fallimento Esperia, the finding of a transfer of State resources was dependent on the fact that the scheme at issue provided for a direct payment obligation such as that described in the two preceding points.
120. It is clear from that judgment that the legal test applied, in line with the relevant case-law, is that of public control. According to the Court, the sums received by the national producers from the sale of green certificates was not merely the result of financial redistribution ‘between two private entities’. (43) The advantage consisting of the provision of green certificates to national producers of green electricity was financed, at least in part, by a reduction of the resources under the control of the State as a result of the obligation for a State-controlled entity to purchase surplus green certificates.
121. Nor can the Commission usefully rely on case-law relating to the concepts of ‘charge’ or ‘internal taxation’ within the meaning of the current Articles 30 and 110 TFEU, in particular the judgment in Dubois and Général cargo services, (44) in support of the distinction between purchase obligations and direct payment obligations. In that regard, I refer to the considerations set out earlier in this Opinion.
122. In conclusion, I consider that the General Court’s reasoning in paragraphs 101 to 118 of the judgment under appeal does not contain any error of law. The General Court rightly held that the scope of the judgment in PreussenElektra is not limited to cases in which the State intervenes by regulating the market price of a transaction, but also covers situations in which the State mandates a direct payment obligation, irrespective of any contractual relationship, between private parties.
123. I would nevertheless like to point out that I am fully aware of the academic debate surrounding the scope of the judgment in PreussenElektra. (45) I am aware that a broad understanding of that scope sometimes leads to a discrepancy between the legal reality and the economic reality which may appear unsatisfactory. In that regard, it is legitimate to question whether, when satisfaction of the ‘State resources’ condition is subject to a twofold requirement of imputability and commitment of State resources, an excessive number of national measures end up falling outside the prohibition on granting State aid. (46)
124. By its appeal, the Commission submits, in essence, that the Court should take into account the degree of State influence over the commercial freedom of undertakings. Although that approach is acceptable, it does not appear to be applicable in the present case. It would amount to invoking a paradigm shift in the assessment of whether or not the transfers of resources imposed by national legislation are State transfers. As I have endeavoured to demonstrate in this Opinion, the legal test applied by the Court’s case-law concerns the influence of the State on the management of private funds, and on the destination of those funds, and not, more generically, on the commercial freedom of those undertakings. I am therefore of the view that no error of law can thus be found in the General Court’s reasoning in paragraphs 101 to 118 of the judgment under appeal.
125. In the light of the foregoing, the second part of the single ground of appeal must, in my view, also be rejected.
126. I therefore propose that the appeal should be dismissed in its entirety.
Costs
127. 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 costs.
128. Under Article 138(1) and (2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Federal Republic of Germany has applied for costs and the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Federal Republic of Germany.
Conclusion
129. On the basis of the foregoing considerations, I propose that the Court should:
(1)      dismiss the appeal;
(2)      order the European Commission to bear its own costs and to pay those incurred by the Federal Republic of Germany.
1      Original language: French.
2      C‑702/20 and C‑17/21, ‘the judgment in DOBELES HES’, EU:C:2023:1.
3      The judgment in DOBELES HES (paragraphs 38, 39 and 42).
4      See judgments of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, ‘the judgment in Essent’, EU:C:2008:413); 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, ‘the judgment in FVE Holýšov’, EU:C:2021:740).
5      See judgment of 26 September 2024, Covestro Deutschland and Germany v Commission (C‑790/21 P and C‑791/21 P, EU:C:2024:792, paragraph 147 and the case-law cited).
6      See, for example, judgment of 28 March 2019, Germany v Commission (C‑405/16 P, ‘the judgment in EEG 2012’, EU:C:2019:268, paragraph 50).
7      See judgments of 24 January 1978, van Tiggele (82/77, EU:C:1978:10); of 30 November 1993, Kirsammer-Hack (C‑189/91, EU:C:1993:907), and of 7 May 1998, Viscido and Others (C‑52/97 to C‑54/97, EU:C:1998:209).
8      See judgment of 15 March 1994, Banco Exterior de España (C‑387/92, EU:C:1994:100, paragraph 14).
9      See judgment of 1 December 1998, Ecotrade (C‑200/97, EU:C:1998:579, paragraph 41).
10      See judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294, paragraph 37).
11      The judgment in PreussenElektra (paragraph 58).
12      The judgment in PreussenElektra (paragraph 59).
13      Formulated for the first time in the judgment of 2 July 1974, Italy v Commission (173/73, EU:C:1974:71), that criterion has been consistently used since the judgment of 19 December 2013, Association Vent De Colère! and Others (C‑262/12, EU:C:2013:851).
14      Paragraph 42 of that judgment.
15      Paragraphs 65 to 67 of the judgment under appeal.
16      Paragraphs 68 to 70 of the judgment under appeal.
17      The judgment in Essent (paragraph 66).
18      The judgment in FVE Holýšov (paragraph 46).
19      Judgment of 20 September 2019, FVE Holýšov I and Others v Commission (T‑217/17, EU:T:2019:633). See, in particular, the last sentence of paragraph 119 of that judgment, according to which: ‘… in the present case, the [special] levy is mandatory for end customers and thus constitutes, in essence, a parafiscal charge’.
20      The judgment in DOBELES HES (in particular paragraphs 36 and 37).
21      Paragraph 64 of the judgment under appeal.
22      The judgment in EEG 2012 (paragraphs 70 and 71).
23      The judgment in FVE Holýšov (paragraph 43).
24      Judgment of 26 September 2024 (C‑795/21 P and C‑796/21 P, EU:C:2024:807).
25      The judgment in WEPA Hygieneprodukte and Others v Commission (C‑795/21 P and C‑796/21 P, EU:C:2024:807, paragraph 129).
26      See judgment of 11 August 1995, Dubois and Général cargo services (C‑16/94, EU:C:1995:268, paragraph 20).
27      As explained in footnote 13 to this Opinion. See judgment of 19 December 2013, Association Vent De Colère!
and Others (C‑262/12, EU:C:2013:851, paragraph 25).
28      The judgment in Essent (paragraphs 67 to 70).
29      Judgments of 15 July 2004, Pearle and Others (C‑345/02, EU:C:2004:448), and of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE (C‑677/11, EU:C:2013:348).
30      Paragraph 72 of the judgment under appeal.
31      Judgment of 6 October 2021, Prosegur Compañía de Seguridad v Commission (C‑55/19 P, EU:C:2021:797, paragraphs 94 and 95 and the case-law cited).
32      Judgment of 13 September 2017 (C‑329/15, ‘the judgment in ENEA’, EU:C:2017:671).
33      The judgment in EEG 2012 (paragraph 3).
34      As noted by the General Court in paragraph 110 of the judgment under appeal.
35      The judgment in ENEA (paragraphs 8, 28 and 29).
36      The judgment in ENEA (paragraph 30).
37      See paragraph 107 of the judgment under appeal and the case-law cited.
38      Emphasis added.
39      Judgment of 7 March 2024 (C‑558/22, ‘the judgment in Fallimento Esperia’, EU:C:2024:209).
40      The judgment in Fallimento Esperia (paragraphs 37 and 74).
41      The judgment in Fallimento Esperia (paragraphs 75 and 77).
42      The judgment in Fallimento Esperia (paragraph 78).
43      The judgment in Fallimento Esperia (paragraph 74).
44      Judgment of 11 August 1995 (C‑16/94, EU:C:1995:268).
45      See, in particular, Rubini, L., The Definition of Subsidy and State Aid: WTO and EC Law in Comparative Perspective, Oxford University Press, New York, 2009, p. 165; de Cecco, F., State Aid and the European Economic Constitution, Hart Publishing, Oxford and Portland, Oregon, 2013, in particular pp. 114 and 115; and Werner, P. and Caramazza, M., ‘“State” Aid or Not – This Is The Question’, European State Aid Law Quarterly, vol. 18, No 4, 2019, p. 525.
46      However, I do not believe that an interpretation of the judgment in PreussenElektra as set out in the judgment under appeal could undermine the effectiveness of Article 107(1) TFEU, as the Commission argues in its appeal.