Appeal brought on 17 December 2021 by Infineon Technologies AG and Infineon Technologies Dresden GmbH & Co. KG against the judgment of the General Court (Third Chamber) delivered on 6 October 2021 in Joined Cases T-233/19 and T-234/19, Infineon Technologies Dresden GmbH & Co. KG and Infineon Technologies AG v European Commission

(Case C-800/21 P)

(2022/C 73/33)

Language of the case: German

Parties

Appellants: Infineon Technologies AG and Infineon Technologies Dresden GmbH & Co. KG (represented by: L. Assmann and M. Peiffer, Rechtsanwälte)

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

Form of order sought

The appellants claim that the Court should:

— set aside in full the judgment under appeal of the General Court (Third Chamber) of 6 October 2021 in the Joined Cases T-233/19 and T-234/19 (ECLI:EU:T:2021:647);

— annul the Commission’s Decision of 28 May 2018 in ‘State aid [case] SA.34045 (2013/c) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 StromNEV’;

— in the alternative, refer the case back to the General Court;

— order the European Commission to pay the costs of both sets of proceedings.

Grounds of appeal and main arguments

The background to the present proceedings is an exemption from network charges under which the appellants, in 2012 and 2013, were exempt from paying network charges to their electricity network operators for the supply of electricity from the general grid (‘the exemption from network charges’).

According to the appellants, the General Court found, in the judgment under appeal, that the exemption from network charges had been financed by means of State resources and therefore constituted State aid, within the meaning of Article 107 TFEU (paragraph 111 of the judgment under appeal). In that regard, the General Court fundamentally misconstrued the concept of State aid following the case-law of the Court of Justice.

The exemption from network charges had been financed through the surcharge under Paragraph 19(2) of the German Stromnetzentgeltverordnung (StromNEV) (Regulation on electricity network charges). That was not an obligatory charge in accordance with the case-law of the Court of Justice, contrary to the finding of the General Court in paragraph 97 of the judgment under appeal, which could be an indication of the State nature of the resources within the meaning of Article 107(1) TFEU.

In the appeal, the appellants principally dispute the application of EU law and claim that the General Court incorrectly assessed the national law having regard to the criteria of European State aid law (first ground of appeal). According to the appellants, in fact the exemptions from network charges rightly had not been granted by means of State resources as provided for in Article 107(1) TFEU.

The appellants claims that it follows from the case-law of the Court of Justice that State resources, in that sense, only exist where there is a sufficiently direct link with the State budget. The surcharge under Paragraph 19(2) of the StromNEV that is the subject of the proceedings does not, however, have a sufficiently direct link with the German State budget. That surcharge consequently remains a private and not a State resource, that is be paid between network operators and network users.

Moreover, the appellants also claim, in support of their appeal, that the General Court distorted the facts by misconstruing the meaning and scope of the national law (second ground of appeal).