OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 14 February 2019 ( 1 )

Case C‑585/17

Finanzamt Linz,

Finanzamt Kirchdorf Perg Steyr

Other party to the proceedings:

Dilly’s Wellnesshotel GmbH

(Request for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria))

(Reference for a preliminary ruling — State aid — Aid scheme in the form of reductions in environmental taxes — Directive 2003/96/EC — Taxation of energy products and electricity — Article 17(1)(a) — Energy-intensive business — Regulation (EU) No 651/2014 — Article 44(1) to (3) — Selection of beneficiaries on the basis of transparent and objective criteria — Payment of a fixed compensation amount — Article 58(1) — Transitional provisions — Article 5(2)(d) — Transparency of aid — Aid in the form of tax advantages)

I. Introduction

1. By the present request for a preliminary ruling, the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) has referred to the Court several questions concerning the interpretation of Article 108(3) TFEU and Article 44(3) and Article 58(1) of Regulation (EU) No 651/2014. ( 2 )

2. This request has been made in the context of two appeals on a point of law (Revision) brought by the Finanzamt Linz (Tax Office, Linz, Austria), on the one hand, and the Finanzamt Kirchdorf Perg Steyr (Tax Office, Kirchdorf Perg Steyr, Austria), on the other, against judgments given in favour of Dilly’s Wellnesshotel GmbH in connection with energy tax rebates for which the latter applied in respect of 2011 and the period between the months of February 2013 and January 2014.

3. The Austrian legislation on energy tax rebates which is at issue in the main proceedings constitutes a scheme of State aid, within the meaning of Article 107(1) TFEU. Although the referring court starts from the principle that an earlier version of the aid scheme at issue in the main proceedings was approved by the Commission in 2004, the group of beneficiaries of the aid scheme has been subsequently amended and that amendment, which is part of the aid scheme at issue in the main proceedings, was not notified to the European Commission.

4. In that regard, if the amendment to the group of beneficiaries of the aid is subject to the notification obligation under Article 108(3) TFEU, the referring court wishes to ascertain whether that aid scheme can be exempted from the obligation to notify under Regulation No 651/2014, in which case it would be lawful despite not having been notified beforehand. To that end, the referring court has, more specifically, raised the question of whether the aid scheme fulfils the conditions laid down in Article 44(3) and Article 58(1) of Regulation No 651/2014. In accordance with the Court’s request, this Opinion will be confined to an analysis of that question.

5. I propose that the Court answer that question in the affirmative.

II. Legal framework

A. EU Law

1. Regulation No 651/2014

6. Article 5 of Regulation No 651/2014, entitled “Transparency of aid”, provides: ‘1. This Regulation shall apply only to aid in respect of which it is possible to calculate precisely the gross grant equivalent of the aid ex ante without any need to undertake a risk assessment (“transparent aid”). 2. The following categories of aid shall be considered to be transparent: … (d) aid in the form of tax advantages, where the measure provides for a cap ensuring that the applicable threshold is not exceeded; …’

7. Article 44 of that regulation, entitled ‘Aid in the form of reductions in environmental taxes under Directive 2003/96/EC [ ( 3 )]’, provides: ‘1. Aid schemes in the form of reductions in environmental taxes fulfilling the conditions of [Directive 2003/96] shall be compatible with the internal market within the meaning of Article 107(3) [TFEU] and shall be exempted from the notification requirement of Article 108(3) [TFEU], provided that the conditions laid down in this Article and in Chapter I are fulfilled. 2. The beneficiaries of the tax reduction shall be selected on the basis of transparent and objective criteria and shall pay at least the respective minimum level of taxation set by [Directive 2003/96]. 3. Aid schemes in the form of tax reductions shall be based on a reduction of the applicable environmental tax rate or on the payment of a fixed compensation amount or on a combination of these mechanisms. …’

8. Article 58 of Regulation No 651/2014, entitled ‘Transitional provisions’, provides in paragraph 1 thereof: ‘This Regulation shall apply to individual aid granted before its entry into force, if the aid fulfils all the conditions laid down in this Regulation, with the exception of Article 9.’

2. Directive 2003/96

9. Article 17(1) of Directive 2003/96 is worded as follows: ‘Provided the minimum levels of taxation prescribed in this Directive are respected on average for each business, Member States may apply tax reductions on the consumption of energy products used for heating purposes or for the purposes of Article 8(2)(b) and (c) and on electricity in the following cases: (a) in favour of energy-intensive business An “energy-intensive business” shall mean a business entity, as referred to in Article 11, where either the purchases of energy products and electricity amount to at least 3.0% of the production value or the national energy tax payable amounts to at least 0.5% of the added value. Within this definition, Member States may apply more restrictive concepts, including sales value, process and sector definitions. …’

B. Austrian law

10. Paragraph 1(1) of the Energieabgabenvergütungsgesetz (Law on the rebate of energy taxes; ‘the EAVG’), provides, in the version applicable in the main proceedings: ‘Taxes paid on the energy resources set out in subparagraph 3 shall, on application, be rebated on the basis of a calendar (financial) year, in so far as (in total) they exceed 0.5% of the difference between 1. supplies within the meaning of Paragraph 1(1), points (1) and (2), of the Umsatzsteuergesetz 1994 (1994 Law on turnover tax) and 2. supplies within the meaning of Paragraph 1(1), points (1) and (2), of the 1994 Law on turnover tax which are made to the undertaking (the net output value).’

11. Paragraph 1(1) of the EAVG is supplemented by Paragraph 2(2), which, in the version applicable in the main proceedings, provides: ‘1. Upon application by the beneficiary, any amount in excess of the proportion of net output value set out in Paragraph 1 shall be rebated once per calendar (financial) year. The application shall specify the amount of energy resources as set out in Paragraph 1(3) which have been used by the undertaking and the values referred to in Paragraph 1. … 2. The rebate amount to be credited shall be the lesser of either the limit of 0.5% of net output value or the following excesses: – for electricity, EUR 0.0005/kWh, – for natural gas referred to in subheading 27112100 of the Combined Nomenclature, EUR 0.00598/m3 as standard, – for coal products, lignite, coke, bitumen and asphalt of headings 2701, 2702, 2704, 2713 and 2714 of the Combined Nomenclature, EUR 0.15/gigajoule, – for extra-light fuel oil (gas oils in subheadings 27101941, 27101945, 27101949 of the Combined Nomenclature) EUR 21/1 000 l, – for light, medium and heavy fuel oil (subheadings 27101961, 27101963, 27101965, 27101969 of the Combined Nomenclature) EUR 15/1 000 kg, – for liquefied gas (subheadings 271112, 271113, 271114, 271119 of the Combined Nomenclature), EUR 7.5/1 000 kg. …’

12. Paragraph 2(1) of the EAVG, in the version in BGBl. I, 92/2004, provides that: ‘All undertakings shall be eligible for a rebate …’

13. The Budgetbegleitgesetz 2011(Law accompanying the budget of 2011) of 30 December 2010 (BGBl. I, 111/2010; ‘the BBG 2011’) amended Paragraph 2(1) as follows: ‘… Only undertakings whose activity is shown to consist primarily in the manufacture of goods shall be entitled to a rebate …’

14. The following subparagraph 7 was added to Paragraph 4 of the EAVG: ‘Paragraphs 2 and 3, in each case as amended [by the BBG 2011], shall, subject to approval by the European Commission, apply to rebate applications in respect of periods after 31 December 2010.’ ( 4 )

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

15. By an application of 29 December 2011, Dilly’s Wellnesshotel, which operates a hotel, claimed an energy tax rebate for 2011.

16. That application was rejected by the Tax Office, Linz by decision of 21 February 2012, on the ground that the BBG 2011 provided, in Paragraphs 2 and 3 of the EAVG, that, from 31 December 2010, only undertakings whose activity is shown to consist primarily in the manufacture of goods are eligible to apply for an energy tax rebate. According to that authority, as a service provider, Dilly’s Wellnesshotel is therefore excluded from energy tax rebates for the period after 31 December 2010.

17. Dilly’s Wellnesshotel brought an administrative appeal against that decision before the Unabhängiger Finanzsenat (Independent Finance Tribunal, Austria), which, by decision of 23 March 2012, dismissed the appeal as being unfounded.

18. Dilly’s Wellnesshotel brought a legal action against that decision before the Verwaltungsgerichtshof (Supreme Administrative Court), which annulled the contested decision by decision of 19 March 2013.

19. By judgment of 31 October 2014, the Bundesfinanzgericht (Federal Finance Court, Austria), which is the successor to the Unabhängiger Finanzsenat (Independent Finance Tribunal), referred several questions to the Court for a preliminary ruling.

20. By the judgment of 21 July 2016, ( 5 ) the Court held that Article 3(1) of Regulation No 800/2008 had to be interpreted as meaning that the absence, in an aid scheme such as that at issue in the main proceedings, of an express reference to that regulation, by citing its title and publication reference in the Official Journal of the European Union, precludes that scheme from being considered to fulfil the conditions for exemption, under Article 25(1) of that regulation, from the obligation to notify laid down in Article 108(3) TFEU.

21. By judgment of 3 August 2016, the Bundesfinanzgericht (Federal Finance Court) upheld the administrative appeal and ordered an energy tax rebate for the year 2011, as applied for by Dilly’s Wellnesshotel. In essence, that court held that Paragraphs 2 and 3 and Paragraph 4(7) of the EAVG, as amended by the BBG 2011, did not contain any reference to Regulation No 800/2008 and did not fulfil its essential conditions. In the absence of approval by the Commission, the restriction concerning service providers has not entered into force.

22. The Tax Office, Linz brought an appeal on a point of law (Revision) against that decision before the Verwaltungsgerichtshof (Supreme Administrative Court).

23. By a further application of 25 July 2014, Dilly’s Wellnesshotel claimed an energy tax rebate for the period between the months of February 2013 and January 2014.

24. By decision of 9 January 2015, the Tax Office, Kirchdorf Perg Steyr rejected that application on the same ground as that of the Tax Office, Linz by decision of 21 February 2012.

25. Dilly’s Wellnesshotel brought an administrative appeal against the decision of 9 January 2015 before the Bundesfinanzgericht (Federal Finance Court), which upheld the appeal and ordered an energy tax rebate as applied for by Dilly’s Wellnesshotel, referring, in essence, to its decision of 3 August 2016, cited in point 21 of this Opinion.

26. The Tax Office, Kirchdorf Perg Steyr brought an appeal on a point of law (Revision) against that decision before the Verwaltungsgerichtshof (Supreme Administrative Court).

27. The latter court considers that the energy tax rebate under the EAVG, in its previous version of the BBG 2011, constitutes aid approved implicitly and without restriction by the Commission in a decision of 9 March 2004. ( 6 )

28. That court notes that, by the BBG 2011, the Austrian legislature sought to restrict those eligible for that aid scheme, so that entitlement to an energy tax rebate would henceforth be granted only to undertakings whose activity is shown to consist primarily in the manufacture of goods. However, that amendment to the EAVG was not notified to the Commission. ( 7 )

29. The referring court in addition explains that, by making the entry into force of the EAVG, as amended by the BBG 2011, conditional upon its approval by the Commission, ( 8 ) the legislature manifestly wished to ensure that the restriction laid down in the BBG 2011 could not infringe the provisions of EU State aid law and, therefore, run counter to the approval as granted without restriction to the previous aid scheme. If a restriction of those eligible were to be precluded on grounds of State aid law or if, in particular, the required Commission approval could not be obtained, the measure would have to remain in force in its previous form.

30. In that context, by decision of 14 September 2017, received at the Court on 5 October 2017, the Verwaltungsgerichtshof (Supreme Administrative Court,) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: ‘(1) In a situation such as that in the present case, does an amendment to an approved aid scheme whereby a Member State elects no longer to use the approval of that aid in connection with a particular (separable) group of beneficiaries, and thus simply reduces the level of aid granted under an existing aid measure, constitute an alteration of an aid scheme which is subject (in principle) to the obligation to notify laid down in Article 108(3) TFEU? (2) In the event of a formal error in the application of [Regulation No 800/2008], is the standstill obligation laid down in Article 108(3) TFEU capable of rendering a restriction of an approved aid scheme inapplicable, with the result that the standstill obligation has the effect of compelling the Member State to pay aid to particular beneficiaries (“implementation obligation”)? (3) (a) Does an energy tax rebate scheme such as that at issue here, under which the amount of the energy tax rebate is clearly determined by law on the basis of a calculation formula, fulfil the conditions laid down in [Regulation No 651/2014]? (3) (b) Does Article 58(1) of [Regulation No 651/2014] have the effect of exempting such an energy tax rebate scheme for the period from January 2011?’

31. In accordance with the Court’s request, this Opinion will be confined to an analysis of question 3(a) and (b).

32. Written observations have been submitted to the Court by Dilly’s Wellnesshotel, the Austrian Government and the Commission. The same parties attended the hearing on 21 November 2018.

IV. Analysis

A. Preliminary observations on the context within which the third question arose

33. The EAVG has already led to two judgments by the Court — those in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke ( 9 ) and Dilly’s Wellnesshotel. ( 10 )

34. In its original version, the EAVG provided for a partial energy tax rebate available only to undertakings whose activity was shown to consist primarily in the manufacture of goods. Service providers were not therefore eligible for that tax rebate. In the judgment in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, ( 11 ) the Court held that such national measures were selective and constituted State aid within the meaning of Article 107(1) TFEU.

35. By an amendment applicable from 1 January 2002, the Austrian legislature broadened the scope of the EAVG by making a partial tax rebate available to undertakings in all sectors. By the aforementioned decision of 9 March 2004, ( 12 ) the Commission took the view that that measure was still selective and therefore continued to be State aid within the meaning of Article 107(1) TFEU. ( 13 )

36. By the amendment introduced by the BBG 2011, the Austrian legislature once again excluded service providers from eligibility for the energy tax rebate as from 1 February 2011. As I have explained above, ( 14 ) the national legislation at issue in the main proceedings, namely the EAVG as amended by the BBG 2011 (‘the aid scheme at issue’ or ‘the EAVG 2011’), was not notified to the Commission.

37. I recall that in the previous Dilly’s Wellnesshotel case, referred to in point 20 of the present Opinion, the Court held, in essence, that the aid scheme at issue did not fulfil the conditions set out in Regulation No 800/2008 for exemption from the obligation to notify laid down in Article 108(3) TFEU, inasmuch as it does not contain an express reference to that regulation, as Article 3(1) thereof requires. ( 15 )

38. I note that Regulation No 651/2014 repealed Regulation No 800/2008 and replaced it with effect from 1 July 2014. Regulation No 651/2014 contains conditions other than those laid down in Regulation No 800/2008 with respect to exemption from the obligation to notify aid schemes such as that at issue in the main proceedings. In particular, Regulation No 651/2014 does not require aid schemes to contain an express reference to that regulation.

39. In the event that the amendment to the aid scheme introduced by the BBG 2011 is subject in principle to an obligation to notify under Article 108(3) TFEU, which forms the subject matter of the first question referred, the referring court seeks, by the third question raised in the present case, to ascertain, in essence, whether, even though the aid scheme at issue is not exempt from the obligation to notify under Regulation No 800/2008, it may nevertheless be exempted from that obligation under Regulation No 651/2014.

40. That third question concerning the interpretation of Regulation No 651/2014 would enable the referring court to ascertain whether the aid scheme at issue was implemented unlawfully under EU law because it was not notified to the Commission beforehand in accordance with Article 108(3) TFEU.

41. The answer given to that question by the Court will enable the referring court to determine the consequences to be drawn under national law if the aid scheme at issue is indeed unlawful in this way.

42. More specifically, in the event that the Court’s answer is that Regulation No 651/2014 is applicable to the aid scheme at issue and therefore exempts that scheme from the obligation to notify, the referring court takes the provisional view that this would mean that the aid scheme at issue did indeed enter into force on 1 February 2011 as provided for by the Austrian legislature. ( 16 ) Given that that aid scheme does not apply to service providers such as Dilly’s Wellnesshotel, that undertaking’s claim for a tax rebate would therefore be turned down.

43. If, on the other hand, the Court’s answer is that Regulation No 651/2014 does not apply to that aid scheme, with the result that it is unlawful under EU law, the referring court takes the provisional view that, since the aid scheme at issue is not to be regarded in such circumstances as having come into force, the previous aid scheme must be regarded as still being applicable as provided for by the Austrian legislature. ( 17 ) In that event, Dilly’s Wellnesshotel would be entitled to the rebate claimed under the previous scheme, which would also apply to service providers. ( 18 ) As I explained in point 27 of the present Opinion, the referring court is of the view in this regard that the previous aid scheme was approved implicitly and without restriction by the Commission.

44. If the Court’s answer to the first question were to be in the affirmative, with the result that the amendment to the aid scheme introduced by the BBG 2011 is an amendment subject in principle to an obligation to notify under Article 108(3) TFEU, the question would then arise as to whether the amendment may nevertheless be exempted from that obligation under Regulation No 651/2014.

B. Applicability of Regulation No 651/2014 to the aid scheme at issue (third question)

45. By the third question referred for a preliminary ruling, the referring court asks, in essence, first, whether the aid scheme at issue fulfils the material conditions laid down in Article 44 of Regulation No 651/2014 (question 3(a)), and, secondly, whether the aid scheme at issue falls within the temporal scope of that regulation pursuant to the transitional provision contained in Article 58(1) of that regulation (question 3(b)).

46. Since question 3(a) is relevant only in so far as the aid scheme at issue falls within the temporal scope of Regulation No 651/2014, question 3(b) must be answered first.

1. Interpretation of Article 58(1) of Regulation No 651/2014 (part (b) of the third question referred)

47. By part (b) of the third question referred, the referring court asks whether Regulation No 651/2014 may be applied retroactively. Assuming that the aid scheme at issue fulfils all the material conditions laid down in Regulation No 651/2014, that court asks, more specifically, whether Article 58(1) of that regulation exempts the aid scheme at issue from the obligation to notify for the period from February 2011 to 30 June 2014, even though Regulation No 651/2014 did not enter into force until 1 July 2014. ( 19 )

48. In common with the Austrian Government and the Commission, I take the view that that question must be answered in the affirmative.

49. Article 58 of that regulation contains transitional provisions. Under Article 58(1) thereof, Regulation No 651/2014 applies to individual aid ( 20 ) granted before its entry into force, namely before 1 July 2014, provided that that aid fulfils all the conditions laid down in that regulation, with the exception of Article 9.

50. The aid covered by the scheme at issue is aid in the form of reductions in environmental taxes granted pursuant to Directive 2003/96. ( 21 ) The conditions that must be fulfilled under Regulation No 651/2014 in order for such aid to be exempted from the obligation to notify are laid down in Article 44 of that regulation.

51. Assuming that the aid scheme at issue fulfils all the conditions laid down in Article 44 of Regulation No 651/2014, it follows that the latter applies to the aid scheme at issue for the period from February 2011 to 30 June 2014, pursuant to Article 58(1) of that regulation.

52. The argument put forward by Dilly’s Wellnesshotel, to the effect, first, that Article 58(1) of that regulation should be interpreted in conjunction with paragraphs 2 and 3 of that provision and, secondly, that it cannot follow from Article 58(1) that an aid scheme which is not exempted under Article 58(3) nonetheless benefits from an exemption under Article 58(1), must therefore be rejected.

53. After all, Article 58(1) of Regulation No 651/2014 does not impose any requirement that the conditions laid down in the other paragraphs of that article must be fulfilled in order for Article 58(1) to be applicable. Paragraphs 1 to 4 of Article 58, on the other hand, each contain transitional rules for different situations. ( 22 )

54. Consequently, I shall propose that the Court’s answer to question 3(b) should be that Article 58(1) of Regulation No 651/2014 must be interpreted as meaning that that regulation exempts from the obligation to notify individual aid in the form of reductions in environmental taxes which was granted under Directive 2003/96 before 1 July 2014, such as that granted under the aid scheme at issue for the period from February 2011 to 30 June 2014, provided that such aid fulfils all the conditions laid down in Article 44 of Regulation No 651/2014.

2. Interpretation of Article 44 of Regulation No 651/2014 (part (a) of the third question referred)

55. Article 44(1) of Regulation No 651/2014 exempts aid schemes in the form of reductions in environmental taxes under Directive 2003/96 from the obligation to notify laid down in Article 108(3) TFEU, provided that they fulfil all the conditions laid down, first, in paragraphs 2 to 4 of that article of Chapter III and Chapter I of the regulation and, secondly, in Directive 2003/96.

56. Although question 3(a) is framed in such a way as not to refer to any particular article of Regulation No 651/2014, it nonetheless follows from the order for reference that the referring court’s uncertainty relates only to the interpretation of Article 44(3) of Regulation No 651/2014, on the ground that, in its view, all the other conditions of Article 44(1) are fulfilled in the dispute in the main proceedings.

57. By part (a) of the third question, therefore, the referring court seeks to ascertain, in essence, whether the aid scheme at issue fulfils the condition laid down in Article 44(3) of Regulation No 651/2014.

58. Nonetheless, Dilly’s Wellnesshotel also contests the referring court’s interpretation of Article 44(1) and (2) of that regulation. I therefore consider it useful to comment briefly also on the interpretation of Article 44(1) and (2).

59. Before addressing Article 44(1) to (3) of Regulation No 651/2014, we must, in my opinion, begin by explaining how the aid scheme at issue, in particular the method for calculating aid, fulfils the conditions laid down in Article 17(1)(a) of Directive 2003/96.

60. This is a relevant preliminary point, since the conditions laid down in Article 44 of Regulation No 651/2014 must be interpreted in conjunction with the conditions set out in Article 17(1) a) of Directive 2003/96, which must also be fulfilled in order for the aid scheme at issue to be exempted from the obligation to notify under Article 44(1) of Regulation No 651/2014.

61. In the remainder of my analysis, therefore, I shall look first at the point relating to Directive 2003/96 (section a), before answering the questions relating to Article 44(1) to (3) (section b).

(a) Article 17(1)(a) of Directive 2003/96

62. The conditions laid down in Article 44(1) of Regulation No 651/2014 with respect to Directive 2003/96 relate more specifically to Article 17(1)(a) of Directive 2003/96, which makes it possible in certain circumstances for Member States to apply tax reductions on the consumption of energy products and electricity for energy-intensive businesses. ( 23 )

63. Article 17(1)(a) essentially comprises two criteria. First, it defines the undertakings eligible for the tax reduction, namely ‘energy-intensive business[es]’. An ‘energy-intensive business’ means, more specifically, a business entity, as referred to in Article 11 of Directive 2003/96, where either the purchases of energy products and electricity amount to at least 3.0% of the production value or the national energy tax payable amounts to at least 0.5% of the added value. It follows from that provision that, within that definition, Member States may apply more restrictive concepts, such as sector definitions.

64. Secondly, Article 17(1)(a), cited above, provides that the minimum levels of taxation prescribed in the directive, that is to say in Annex I, Table C, thereof, which fixes minimum levels of taxation applicable to heating fuels and electricity, must be respected.

65. In the present case, the Austrian Government and the Commission take the view that the aid provided for by the aid scheme at issue is aid in the form of reductions in environmental taxes granted under Directive 2003/96 and that that aid scheme fulfils the two criteria laid down in Article 17(1)(a) of Directive 2003/96. This is not disputed by Dilly’s Wellnesshotel. I shall therefore proceed on the basis of this assumption, which, in my opinion, is well founded.

66. More specifically, as the Austrian Government explains, it is appropriate to start from the principle that the aid scheme at issue provides for tax reductions on the consumption of energy products within the meaning of Article 17(1) of that directive that take the form of a partial tax rebate. That form of tax reduction is provided for in Article 6(c) of that directive. ( 24 )

67. Next, as regards the first criterion laid down in Article 17(1)(a) of that directive, Paragraph 1(1) of the EAVG 2011 states that energy taxes are to be rebated on a calendar-year basis, in so far as they exceed, in total, 0.5% of the net output value. As the Austrian Government points out, the net output value condition ensures that only those undertakings which are regarded as ‘energy-intensive business[es]’ within the meaning of Article 17(1)(a) are eligible for the aid scheme at issue. ( 25 )

68. Furthermore, as the Austrian Government notes, the restriction of those eligible for the aid scheme at issue that is introduced by the BBG 2011 is entirely consistent with the definition of ‘energy-intensive business[es]’ given in Article 17(1)(a) of Directive 2003/96. After all, by restricting those eligible to undertakings whose activity consists primarily in the manufacture of goods, the Austrian Government simply applied a more restrictive criterion in relation to the industrial sector concerned, in accordance with the wording of Article 17(1)(a), which gives the Member States that option. In the same vein, it should be noted that the Court has held that Article 17(1) of Directive 2003/96 does not preclude national rules which provide for tax reductions on the consumption of electricity in favour of energy-intensive businesses in the manufacturing sector alone. ( 26 )

69. As regards the second criterion laid down in Article 17(1)(a) of Directive 2003/96, concerning minimum levels of taxation, I take the view, in common with the Austrian Government, that this too is fulfilled by the aid scheme at issue.

70. After all, Paragraph 2(1) and (2) of the EAVG 2011 essentially provides that the tax rebate constituting the aid is calculated as the difference between the total amount of taxes paid and the higher of the following two amounts: either the amount corresponding to 0.5% of the net output value, or the sum of the minimum levels of taxation applicable to the listed energy sources.

71. That method of calculating aid ensures, first, that only undertakings which are regarded as ‘energy-intensive business[es]’ within the meaning of Article 17(1)(a) of Directive 2003/96 qualify for aid and, secondly, that the aid granted to beneficiaries always respects the minimum levels of taxation required by Annex I, Table C, of that directive.

72. The question then arises as to whether the condition laid down in Article 44(3) of Regulation No 651/2014 is also fulfilled in the dispute in the main proceedings.

(b) Article 44(1) to (3) of Regulation No 651/2014

73. In the submissions that follow, I shall begin by commenting briefly on Article 44(1) and (2), the interpretation of which, to my mind, is not in serious doubt, before looking at the interpretation of Article 44(3).

(1) The interpretation of Article 44(1) of Regulation No 651/2014

74. Under Article 44(1) of Regulation No 651/2014, the conditions laid down in Chapter I of that regulation must be fulfilled in order for the aid scheme to be exempted from the obligation to notify. Article 5(1) which is located in Chapter I of that regulation provides that the regulation applies solely to transparent aid. As regards, more specifically, aid in the form of tax advantages, Article 5(2)(d) of that same regulation provides that this is to be regarded as transparent aid where the measure provides for a cap ensuring that the applicable threshold is not exceeded.

75. Dilly’s Wellnesshotel maintains that the aid scheme at issue does not fulfil the condition laid down in Article 5(2)(d) of Regulation No 651/2014, on the ground that, since the aid scheme at issue has no cap, it is not transparent within the meaning of Article 5(2) of that regulation.

76. I, like the referring court, and in common with the Austrian Government and the Commission, take the view that Article 5(2)(d) is not relevant in the present case. After all, in accordance with the wording of that article, the cap referred to is relevant only to the extent that a notification threshold is applicable. In the case of aid in the form of reductions in environmental taxes under Directive 2003/96, on the other hand, it is to be noted that no notification threshold is provided for in Regulation No 651/2014. ( 27 )

(2) The interpretation of Article 44(2) of Regulation No 651/2014

77. Under Article 44(2) of Regulation No 651/2014, the beneficiaries of the aid scheme at issue must be selected on the basis of transparent and objective criteria.

78. My understanding of the argument put forward by Dilly’s Wellnesshotel in this regard is that the aid scheme at issue does not fulfil that condition because there is no reason why the tax reduction should be granted only to manufacturing undertakings.

79. First of all, it should be noted that the matter of selecting which undertakings are to be eligible for aid is dealt with primarily in Article 17(1)(a) of Directive 2003/96. As explained in point 68 of the present Opinion, the restriction of those eligible for the aid scheme at issue is fully compliant with the conditions laid down in that article.

80. Next, the conditions of transparency and objectivity laid down in Article 44(2) of Regulation No 651/2014 must, in my view, be understood as meaning that they require, first, that the group of beneficiaries, as determined by the Member States in accordance with Article 17(1)(a) of Directive 2003/96, should be clearly identified in national law and, secondly, that that group should be determined so as to ensure that aid is granted in the same way for all competitors found to be in a similar factual situation, in accordance with recital 64 of Regulation No 651/2014.

81. In the present case, it is clear that the aid scheme at issue satisfies those requirements, given, first, that the beneficiaries of the aid scheme at issue are clearly identified by it in Paragraph 2(1) of the EAVG 2011 and, secondly, that the aid is granted in the same way for all competitors found to be in a similar factual situation, that is to say undertakings whose activity consists primarily in the manufacture of goods.

(3) The interpretation of Article 44(3) of Regulation No 651/2014

82. Under Article 44(3) of Regulation No 651/2014, aid schemes in the form of tax reductions are to be based on a reduction of the applicable environmental tax rate or on the payment of a fixed compensation amount or on a combination of these mechanisms.

83. The referring court asks, in essence, whether the aid scheme at issue is based on one of those three mechanisms, given that the tax reduction provided for in the EAVG 2011 is determined by a specific calculation formula.

84. In that regard, it is necessary first of all to determine how exactly the condition laid down in Article 44(3) of Regulation No 651/2014 is to be understood and, next, whether the aid scheme fulfils that condition.

85. On the first point, it should be noted at the outset that the condition thus introduced by Regulation No 651/2014, which did not feature in the previous block exemption regulation, ( 28 ) has, to my knowledge, not yet been the subject of an assessment by the Court.

86. Next, I would observe that, as regards aid in the form of tax reductions granted under Directive 2003/96, recital 64 of Regulation No 651/2014 states that, in order ‘to better preserve the price signal for undertakings which the environmental tax aims to give’, Member States should be able to ‘design the tax reduction scheme based on a fixed annual compensation amount (tax refund) disbursement mechanism’.

87. From the latter part of that recital, which actually contains a definition of the expression ‘fixed annual compensation amount’, I understand Article 44(3) to mean that it requires the aid scheme to be based either on a tax rebate scheme that grants an annual fixed amount, or on a mechanism for reducing the applicable tax rate, in which case the aid does not take the form of a rebate but is granted at source by applying reduced rates, or on a combination of both mechanisms. As I explained in point 66 and footnote 24 of the present Opinion, those two methods are also laid down in Article 6(b) and (c) of Directive 2003/96, for tax reductions.

88. Aside from that requirement, Article 44(3) of Regulation No 651/2014 does not, in my view, lay down any detailed rules for the implementation of those mechanisms. Article 17(1)(a) of Directive 2003/96, on the other hand, as explained in points 63 to 71 of the present Opinion, does lay down detailed rules for tax reductions, and, in the present case, those rules have been complied with.

89. Moreover, that interpretation of Article 44(3) of Regulation No 651/2014 seems to me to be entirely consistent with the overall aim of Regulation No 651/2014. One of the objectives of that regulation, after all, is to strengthen transparency, monitoring and proper evaluation of very large schemes in the light of their effect on competition in the internal market. ( 29 )

90. In that regard, I, like the Commission, take Article 44(3) of Regulation No 651/2014 to mean that, where aid schemes are based on one of the three mechanisms provided for in that article, this means that the amount of the aid is awarded in a transparent manner.

91. In the present case, I, in common with the Commission and the Austrian Government, take the view that the aid scheme at issue fulfils the condition laid down in Article 44(3) of Regulation No 651/2014.

92. The Commission considers that the aid scheme at issue is based on ‘a reduction of the applicable environmental tax rate’ within the meaning of Article 44(3), pursuant to a particularly teleological interpretation of that article.

93. To my mind, the aid scheme at issue is based rather on the ‘payment of a fixed compensation amount’, that is, a tax rebate scheme that grants an annual fixed amount. More specifically, the aid scheme at issue provides for a rebate of energy tax paid which is granted, on application, on a calendar-year basis. Inasmuch as aid is calculated on the basis of the tax paid, the aid scheme at issue grants a fixed rebate, which is to say, as the Austrian Government submits, that the calculation leaves no discretion to the tax authority as to the amount to be rebated.

94. The argument put forward by Dilly’s Wellnesshotel, to the effect that the detailed rules of the aid scheme at issue do not fulfil the condition laid down in Article 44(3) of Regulation No 651/2014, in particular because the rebate is calculated according to a specific calculation formula, inasmuch as the amount to be rebated depends on the energy consumption of the undertaking concerned, must therefore be rejected. It is clear that all aid in the form of tax reductions granted under Directive 2003/96 is, by its nature, calculated on the basis of the actual energy consumption of the undertakings concerned. ( 30 )

95. I therefore propose that the Court’s answer to question 3(a) should be that Article 44(3) of Regulation No 651/2014 is to be interpreted as meaning that it applies to an aid scheme, such as that at issue in the main proceedings, which is based on an environmental tax rebate scheme and explicitly defines the amount of that tax rebate by means of a calculation formula laid down by law.

V. Conclusion

96. In the light of the foregoing considerations, I propose that the Court’s answer to the third question referred for a preliminary ruling by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) should be as follows: (1) Article 44(3) of Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty must be interpreted as meaning that it applies to an aid scheme, such as that at issue in the main proceedings, which is based on an environmental tax rebate scheme and explicitly defines the amount of that tax rebate by means of a calculation formula laid down by law. (2) Article 58(1) of Regulation No 651/2014 must be interpreted as meaning that that regulation creates an exemption to the obligation to notify individual aid in the form of reductions in environmental taxes which was granted under Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity before 1 July 2014, such as that granted under the aid scheme at issue in the main proceedings for the period from February 2011 to 30 June 2014, provided that such aid fulfils all the conditions laid down in Article 44 of Regulation No 651/2014.

( 1 ) Original language: French.

( 2 ) Commission Regulation of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty (OJ 2014 L 187, p. 1). That regulation repealed Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (OJ 2008 L 214, p. 3).

( 3 ) Council Directive of 27 October 2003 restructuring the [Community] framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).

( 4 ) The referring court explains that, while the BBG 2011 was originally due to apply from 1 January 2011, it was later made clear in a judgment of the Verwaltungsgerichtshof (Supreme Administrative Court) and by amending decree of 29 August 2013 that the BBG 2011 was to apply from 1 February 2011.

( 5 ) Dilly’s Wellnesshotel (C‑493/14, EU:C:2016:577).

( 6 ) Commission Decision on an aid scheme implemented by Austria for a refund from the energy taxes on natural gas and electricity in 2002 and 2003 (OJ 2005 L 190, p. 13).

( 7 ) See the judgment of 21 July 2016, Dilly’s Wellnesshotel (C‑493/14, EU:C:2016:577, paragraph 39).

( 8 ) See Paragraph 4(7) of the EAVG 2011, cited in point 14 of the present Opinion.

( 9 ) Judgment of 8 November 2001 (C‑143/99, EU:C:2001:598).

( 10 ) Judgment of 21 July 2016 (C‑493/14, EU:C:2016:577).

( 11 ) Judgment of 8 November 2001 (C‑143/99, EU:C:2001:598).

( 12 ) See point 27 and footnote 6 of the present Opinion.

( 13 ) Although theoretically available to all undertakings, the Commission considered that, in practice, that rebate benefits undertakings whose energy consumption is high by comparison with their net production value (see paragraphs 45 to 55 of that Commission decision).

( 14 ) See point 28 of the present Opinion.

( 15 ) Judgment of 21 July 2016 (C‑493/14, EU:C:2016:577, paragraphs 30 to 52).

( 16 ) See point 29 of the present Opinion.

( 17 ) See point 29 of the present Opinion.

( 18 ) It should also be noted that, in the two decisions cited in points 21 and 25 of the present Opinion, the Bundesfinanzgericht (Federal Finance Court) held that, since the aid scheme at issue was implemented in breach of EU law, it is appropriate to regard it as never having have entered into force and to grant the tax rebate claimed by Dilly’s Wellnesshotel under the previous aid scheme.

( 19 ) Article 59 of Regulation No 651/2014.

( 20 ) Article 2(14) defines ‘individual aid’ within the meaning of Regulation No 651/2014 as ad hoc aid and awards of aid to individual beneficiaries on the basis of an aid scheme.

( 21 ) See point 66 of the present Opinion.

( 22 ) It should be noted that Article 58(3) of Regulation No 651/2014, on which Dilly’s Wellnesshotel relies, provides for an exemption from the obligation to notify which is applicable to any individual aid granted before 1 January 2015 under Regulation No 800/2008, the former general block exemption regulation. That transitional provision is the corollary of Article 44(3) of Regulation No 800/2008, under which, at the end of the period of validity of that regulation, any aid schemes exempted under that regulation are to remain exempted during an adjustment period of 6 months, that is to say until 31 December 2014. Article 58(3) of Regulation No 651/2014 therefore creates an exemption for aid granted under Regulation No 800/2008 which is applicable for the period between 1 July 2014 and 31 December 2014. Even if that aid is not exempt under Regulation No 651/2014, applicable from 1 July 2014, Article 58(3) thereof nonetheless exempts it until 31 December 2014. In the present case, given that the Court held, in its judgment in Dilly’s Wellnesshotel (C‑493/14, EU:C:2016:577), that the aid scheme at issue was not exempt from the obligation to notify under Regulation No 800/2008, it follows that Article 58(3) of Regulation No 651/2014 is not relevant in the present case.

( 23 ) It should be noted that Article 17(1)(b) and Article 17(3) of Directive 2003/96 also make it possible for Member States to apply tax reductions in other situations. These, however, are not relevant in the present case.

( 24 ) That article states that the Member States are to be free to give effect to the reductions in the level of taxation prescribed by the directive by refunding part of the amount of taxation. Moreover, Article 6(b) of the directive provides that the exemption may also be granted in the form of a differentiated rate.

( 25 ) I start from the principle that ‘net output value’ as provided for in Paragraph 1(1) of the EAVG 2011 is to be understood as ‘added value’ within the meaning of Article 17(1) of Directive 2003/96.

( 26 ) See judgment of 18 January 2017, IRCCS — Fondazione Santa Lucia (C‑189/15, EU:C:2017:17, paragraphs 45 to 52).

( 27 ) Conversely, Article 4 of that regulation lays down notification thresholds for several other types of aid in the case of which Article 5(2)(d) will be relevant, provided that such aid is granted in the form of tax advantages. I note that the amount of aid to be granted under the aid scheme at issue depends on energy consumption by the undertaking concerned, and Regulation No 651/2014 does not therefore define that amount.

( 28 ) Aid in the form of reductions in environmental taxes were governed by Article 25 of Regulation No 800/2008. Under that article, aid schemes fulfilling the conditions laid down in Directive 2003/96 are to be exempt from the obligation to notify, provided that the beneficiaries pay at least the Community minimum tax level set by Directive 2003/96 and that the tax reductions are granted for maximum periods of 10 years.

( 29 ) See, in particular, recitals 3 to 5 of Regulation No 651/2014.

( 30 ) See also footnote 27 of the present Opinion.