Appeal brought on 16 December 2021 by AZ against the judgment of the General Court (Third Chamber) delivered on 6 October 2021 in Case T-196/19, AZ v Commission

(Case C-792/21 P)

(2022/C 73/28)

Language of the case: German

Parties

Appellant: AZ (represented by: T. Hartmann, D. Fouquet, M. Kachel, Rechtsanwälte)

Other parties to the proceedings: European Commission, Federal Republic of Germany

Form of order sought

The appellant claims that the Court should:

1. (a) set aside the judgment of the General Court of the European Union of 6 October 2021, Case T-196/19, and annul European Commission Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 notified under document C(2018) 3166 in respect of the years 2012 and 2013; (b) in the alternative to (a), set aside the judgment under appeal and annul the contested decision as against the appellant;

2. in the alternative to 1., (a) set aside the judgment under appeal and annul the contested decision in so far as it orders that baseload consumers with at least 7 000 annual hours of use repay more than 20 % of the published network charges, baseload consumers with at least 7 500 annual hours of use repay more than 15 % of the published network charges and baseload consumers with at least 8 000 annual hours of use repay more than 10 % of the published network charges, and refer the case back to the General Court as to the remainder for a new ruling on claim 1(a) made at first instance seeking annulment of the contested decision also as to the remainder; (b) in the alternative to (a), set aside the judgment under appeal and annul the contested decision as against the appellant in so far as it orders that baseload consumers with at least 7 000 annual hours of use repay more than 20 % of the published network charges, and refer the case back to the General Court as to the remainder for a new ruling on claim 1(b) made at first instance seeking annulment of the contested decision in its entirety (or ‘also as to the remainder’) as against the appellant;

3. in the alternative to 2., (a) set aside the judgment under appeal and refer the case back to the General Court for a new ruling on claim 1(a) made at first instance seeking annulment of the contested decision; (b) in the alternative to (a), set aside the judgment under appeal and refer the case back to the General Court for a new ruling on claim 1(b) made at first instance seeking annulment of the contested decision as against the appellant;

4. in the alternative to 3., (a) set aside the judgment under appeal and annul the contested decision in so far as it orders that baseload consumers with at least 7 000 annual hours of use repay more than 20 % of the published network charges, baseload consumers with at least 7 500 annual hours of use repay more than 15 % of the published network charges and baseload consumers with at least 8 000 annual hours of use repay more than 10 % of the published network charges; (b) in the alternative to (a), set aside the judgment under appeal and annul the contested decision as against the appellant in so far as it orders that baseload consumers with at least 7 000 annual hours of use repay more than 20 % of the published network charges;

5. in the alternative to 4., (a) set aside the judgment under appeal and refer the case back to the General Court for a new ruling on claim 2(a) made at first instance seeking annulment of the contested decision in so far as it orders that baseload consumers with at least 7 000 annual hours of use repay more than 20 % of the published network charges, baseload consumers with at least 7 500 annual hours of use repay more than 15 % of the published network charges and baseload consumers with at least 8 000 annual hours of use repay more than 10 % of the published network charges; (b) in the alternative to (a), set aside the judgment under appeal and refer the case back to the General Court for a new ruling on claim 2(b) made at first instance seeking annulment of the contested decision as against the appellant in so far as it orders that baseload consumers with at least 7 000 annual hours of use repay more than 20 % of the published network charges;

6. order the Commission to pay the costs of the proceedings, including lawyers’ fees and travel expenses.

Grounds of appeal and main arguments

In support of the appeal, the appellant relies on four grounds of appeal.

First and second grounds of appeal: infringement of the right to be heard and of the obligation to state grounds

As regards the first two grounds of appeal, the appellant argues that the General Court infringes procedural requirements of EU law, namely the appellant’s right to be heard and the obligation of the General Court to state the grounds for the judgment. As a consequence of those infringements, the General Court errs in law by taking the view that there is unauthorised State aid within the meaning of Article 107(1) TFEU.

By the first part of those two grounds of appeal, the appellant complains that the General Court did not take account of its submission relating to the erroneous nature of the reference framework as the basis for determining whether there is a selective advantage (paragraphs 8, 117 and 127 of the judgment under appeal).

By the second part of those two grounds of appeal, the appellant alleges that the General Court did not take account of its submission relating to the determination of the amount of the surcharge under Paragraph 19(2) of the Stromnetzentgeltverordnung (German Ordinance on Electricity Network Charges, ‘the StromNEV’) (paragraphs 12, 68, 100 and 101 of the judgment under appeal).

By the third part of those two grounds of appeal, the appellant complains that the General Court did not take account of its submission relating to the non-compensation of all losses in revenue and all costs resulting from the grant of exemptions from network charges when determining whether the resources are State resources (paragraphs 95 and 96 of the judgment under appeal).

By the fourth part of those two grounds of appeal, the appellant complains that the General Court did not take account of its submission relating to the invalidity of the decision of the Bundesnetzagentur (Federal Network Agency) of 2011 when determining whether the resources are State resources (paragraph 76 of the judgment under appeal).

Third ground of appeal: infringement of Article 107(1) TFEU

As regards its third ground of appeal, the appellant further argues that the General Court infringes substantive EU law by regarding the surcharge under Paragraph 19(2) of the StromNEV as State aid within the meaning of Article 107(1) TFEU.

First, the appellant complains in that regard that the General Court applies in its assessment legally erroneous criteria under State aid law for a levy under State aid law and for State control (paragraphs 77, 83, 86 and 101 of the judgment under appeal).

Secondly, the appellant complains that the General Court, relying on a distorted presentation of national law, errs in law by regarding the surcharge under Paragraph 19(2) of the StromNEV as a levy under State aid law, even though there was neither an obligation to levy on the part of network operators nor an obligation to pay on the part of network users or final electricity consumers, and network operators were not compensated for all losses in revenue and all costs (paragraphs 68 and 75 to 115 of the judgment under appeal).

Thirdly, the appellant complains that the General Court, relying on a distorted presentation of national law, errs in law by taking the view that there is State control over the surcharge under Paragraph 19(2) of the StromNEV because that Court presupposes an obligation to levy and full coverage of costs and takes the view that the Federal Network Agency determined the amount of the surcharge (paragraphs 100 to 112 of the judgment under appeal).

Fourthly, the appellant complains that the General Court, relying on the distorted presentation of national law, defines an incomplete and erroneous reference framework (paragraphs 8 and 128 to 131 of the judgment under appeal).

Fourth ground of appeal: infringement of the requirement of equal treatment

Lastly, the appellant alleges in its fourth ground of appeal an infringement of the prohibition of discrimination in so far as the General Court fails to acknowledge the unlawful difference in treatment vis-à-vis the transitional rule under Paragraph 32(7) of the StromNEV 2013 as a result of the recovery of aid ordered by the Commission in the contested decision and therefore concludes that there is no breach of the general principle of equal treatment under EU law (paragraph 141 of the judgment under appeal).