Opinion of the Advocate-General



Opinion of the Advocate-General

1. By decision of 19 April 2006, the Rechtbank Groningen (Groningen District Court) (Netherlands) referred to the Court, pursuant to Article 234 EC, two questions for a preliminary ruling, the first concerning the interpretation of Articles 25 EC and 90 EC, and the second the interpretation of Article 87(1) EC.

2. Those questions have arisen in the context of proceedings brought by Essent Netwerk Noord BV (‘Essent’) against Aluminium Delfzijl BV (‘Aldel’), in which Essent is seeking to obtain the payment of a sum calculated on the basis of the quantity of electricity it transmitted to the defendant. Liability for payment of that sum was imposed under a statutory requirement and the purpose of it was to cover the non-recoverable costs incurred by the national electricity generating undertakings in the period prior to commencement of the process of liberalising the electricity market in the Netherlands.

I – Legal and legislative background

A – Community law

3. Article 25 EC provides as follows:

‘Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.’

4. According to Article 90 EC:

‘No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.’

B – National legislation

5. Until the entry into force, on 1 August 1998, of the Elektriciteitswet 1998 (1998 Law on electricity), which initiated the process of liberalising the electricity sector in implementation of Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity, (2) the 1989 Law on electricity regulated the supply of electricity in the Netherlands.

6. During the material period for the purposes of the main proceedings, that is to say the period between 1 August and 31 December 2000, four generating undertakings (‘the EGUs’) (3) and their joint subsidiary, NV Samenwerkende Elektriciteitsproductiebedrijven (SEP), were responsible for the generation, importation and transmission of electricity. (4) According to the order for reference, until 1999, all of the EGUs were controlled by municipalities and provinces, whereas, during the reference period, only EPZ remained indirectly in public ownership through its shareholders Essent and Delta. (5) The EGUs and SEP operated together on the basis of a ‘cooperation agreement’. (6)

7. Under the 1989 Law on electricity, either alone or in conjunction with the EGUs, SEP made certain long-term investments required by the public authorities in connection with energy and/or environmental policy decisions, including, in particular, the conclusion of agreements relating to an urban heating project and an experimental coal gas plant (Demkolec). Those investments resulted in non-recoverable costs (also called ‘stranded costs’).

8. With a view to the imminent market liberalisation, and in order to allow the electricity generating sector to recover those costs, on 21 January 1997, SEP and the EGUs concluded with the companies involved in the distribution of electricity (7) a protocol agreement on supply for the period 1997 to 2000 (‘the protocol’). On the basis of that protocol, the distribution companies undertook to make SEP an annual payment of NLG 400 000 000 to cover the non-recoverable costs, which were allocated on the basis of the amount of energy that SEP had supplied to each undertaking. Those sums were to be financed by an increase in the tariffs which the distribution companies charged certain categories of consumer (small, medium and large ‘ordinary consumers’).

9. Under Article 97 of the 1998 Law on electricity, the protocol was to be observed until 1 January 2001, when the process of liberalising the market in electricity in the Netherlands was to have been completed.

10. However, for the year 2000, because of the entry into force of new pricing rules which required the distribution companies to invoice separately for the cost of the electricity supplied and for transmission costs, those undertakings were unable to pass on to final consumers the amounts which they were required to pay to SEP, under the protocol, to cover the non-recoverable costs.

11. It was against that background that, on 21 December 2000, the Overgangswet Elektriciteitsproductiesector (Transitional Law on the electricity generating sector) (‘the OEPS’) was adopted. Article 9 of the OEPS, which has prompted the national court’s questions, provides as follows:

‘1. Every customer, not being a protected customer, shall, in addition to what he contractually owes to the net operator for the area in which he is established, pay to that net operator an amount of NLG 0.0117 per kWh, calculated on the basis of the total amount of the electricity which the net operator distributed to the customer’s connection over the period from 1 August 2000 to 31 December 2000.

2. Every protected customer shall, in addition to what he contractually owes to the licence holder for the area in which he is established, pay to that licence holder an amount of NLG 0.0117 per kWh, calculated on the basis of the total amount of electricity which that licence holder supplied to the customer over the period from 1 August 2000 to 31 December 2000.

3. …

4. The proceeds from the amounts payable by customers pursuant to the first or second paragraph shall be paid by the net operators or licence holders, before 1 July 2001, to the designated company. [(8) ]

5. The designated company shall inform the Minister of the amount of the proceeds referred to in the fourth paragraph, and shall include therewith a declaration by an auditor, as defined in Article 393, first paragraph, of Book 2 of the Civil Code, concerning the veracity of the statement. If the total of the proceeds amounts to more than NLG 400 000 000, the designated company shall pay the excess to the Minister, who shall set that amount aside for the purpose of defraying the costs referred to in Article 7.’

12. Pursuant to Article 25 of the OEPS, the provisions set out above entered into force on 29 December 2000 and were applied retroactively as of 1 August 2000. According to the national court, Article 9 of the OEPS was not notified separately to the Commission. However, by letter of 30 August 2000, the Netherlands authorities sent the Commission the full text of the draft OEPS, including Article 9.

13. It is also useful to describe the events linked to the drafting of Articles 6 to 8 of the OEPS, although they are not of direct relevance to the main proceedings.

14. In the text of the draft OEPS, Articles 6 to 8 laid down the financing mechanism to cover the non-recoverable costs for the period after 1 January 2001. Under that mechanism, the government was to set, annually, a supplementary charge payable by all customers, except the net operators, expressed as a percentage of the amount owed for the transmission of electricity and related services. Those articles were notified to the Commission for the first time on 20 February 1998, pursuant to Article 24 of Directive 96/92, and, for the second time, on 16 October 1998, for the purposes of Articles 87 EC and 88 EC. By decision of 8 July 1999, the Commission informed the Netherlands Government that the provisions which had been notified to it did not contain measures within the meaning of Article 24 of the abovementioned directive, but did require to be reviewed on the basis of Article 87(3)(c) EC.

15. On 30 August 2000, the Netherlands informed the Commission that some amendments had been made to the provisions at issue. On that occasion, as indicated above, the full text of the OEPS containing those amendments was sent to the Commission. Subsequently, Articles 6 to 8 of the OEPS were further amended, and the mechanism which they laid down was replaced by a system of financing using public funds (these provisions are now Articles 7 and 8 of the OEPS). By decision of 25 July 2001, the Commission authorised the new measures pursuant to Article 87(3)(c) EC.

II – Facts and the questions referred for a preliminary ruling

16. In December 1996, availing themselves of the option of concluding individual supply contracts with large industrial customers, which had been accorded to the company designated under Article 32 of the 1989 Law on electricity, namely SEP, one of the EGUs (EPON) and the distribution company Edon (9) concluded with Aldel, the defendant in the main proceedings, a ‘contract for the provision of electrical capacity and the supply of electrical energy and load management’. That contract stipulated an all-in price for the different services provided, which was exclusive of non-recoverable costs.

17. From 1 January 2000, electricity was transmitted to Aldel, in its capacity as local net operator, (10) by Essent, the applicant in the main proceedings, which had been formed as a result of splitting up the activities of the distribution company Edon. Essent is not a party to the supply contract mentioned above. Both Essent and Aldel are established in the Netherlands.

18. During the period between 1 August and 31 December 2000, Essent transported 717 413 761 kWh of electricity to Aldel’s connection. For the services provided to Aldel during that period, Essent invoiced a total amount inclusive of the surcharge under Article 9 of the OEPS.

19. When Aldel refused to pay the sums corresponding to that surcharge, Essent brought an action before the Rechtbank Groningen. Aldel has claimed in those proceedings that Article 9 of the OEPS is incompatible with Community law. (11)

20. In order to resolve the dispute, the national court considered it necessary to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Articles 25 EC and 90 EC be construed as precluding a statutory rule under which domestic purchasers of electricity are required during a transitional period (31 August 2000 to 31 December 2000) to pay to their net operator a price surcharge on the amounts of electricity transmitted to them, where that surcharge is to be paid by the net operator to a company designated by the legislature for the purpose of defraying non-market-compatible costs which have arisen as a result of obligations incurred, or investments made, by that company prior to liberalisation of the electricity market, and that company:

– is the joint subsidiary of four domestic generating undertakings;

– was solely responsible, in the period in question (2000), for the non-market-compatible costs which arose during that year;

– requires, by general agreement, an amount of NLG 400 000 000 (EUR 181 512 086.40) in order to cover those costs incurred in that year; and

– so far as the income generated by the price surcharge exceeds the aforementioned amount, is required to forward such surplus to the Minister?

(2) Does the rule mentioned in the first question satisfy the requirements of Article 87(1) EC?’

III – Procedure before t he Court

21. Essent, Aldel, NEA (formerly SEP), the Netherlands Government and the Commission lodged written observations in accordance with Article 23 of the Statute of the Court of Justice and made oral submissions at the hearing on 10 May 2007.

22. The Court asked Essent, Aldel, NEA, the Netherlands Government and the Commission to answer a number of written questions before the hearing.

IV – Legal analysis

A – The first question referred

1. Preliminary observations

23. By the first question referred, the national court is asking the Court of Justice whether Articles 25 EC and 90 EC preclude the application of a price surcharge, such as that provided for by Article 9 of the OEPS.

24. As a preliminary point, it must be noted that the relevance of that question for the purpose of resolving the dispute in the main proceedings is not clear from the order for reference. The information which the Court has been given does not indicate whether, or to what extent, the electricity transmitted to Aldel during the period between 1 August and 31 December 2000 was imported from other Member States.

25. It must be pointed out that any finding that the price surcharge at issue is unlawful on the ground of incompatibility with Article 25 EC or 90 EC would relate exclusively to the sums levied on imported electricity. In other words, a finding of that nature would allow Aldel to challenge the imposition of the charges on that product exclusively, and only in so far as those charges are incompatible with the provisions of the EC Treaty.

26. It follows that should the energy transmitted to Aldel’s connection prove to be exclusively of national origin, the Court’s answer to the first question would be irrelevant to the outcome of Essent’s action in the main proceedings. (12)

27. However, according to settled case-law, under the procedure established by Article 234 EC providing for cooperation between national courts and the Court of Justice, it is for the national court to determine both the need for a preliminary ruling in order to enable it to deliver judgment in the proceedings before it and the relevance of the questions which it submits to the Court. The Court may review that assessment only where it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or its purpose. (13)

28. Since that is not the case here, I propose that the Court should consider the first question referred, even though the relevance of the Court’s answer will depend on the outcome of further assessments, which it will be for the national court to make.

2. Assessment

a) A brief account of the case-law

29. Within the system of the Treaty, Articles 25 EC and 90 EC which prohibit, respectively, customs duties and taxes having equivalent effect and discriminatory internal taxation, complement each other in pursuing the objective of prohibiting any national fiscal measure that is capable of discriminating against products originating in or destined for other Member States by impeding their free movement within the Community in normal conditions of competition.

30. Although recognising that they are, essentially, complementary provisions, (14) the Court’s case-law has maintained a formal distinction between the two prohibitions laid down by the Treaty, on several occasions making clear that Articles 25 EC and 90 EC may not be applied cumulatively; (15) consequently, the legality of a national taxation system which falls within the scope of Article 25 EC may not, at the same time, be assessed on the basis of Article 90 EC. (16)

31. According to the case-law, the distinction between taxes having equivalent effect and internal taxes lies in the fact that the former affect only imported or exported products, but not similar or competing national products, whereas the latter affect both categories.

32. According to the definition established by the Court’s case-law, any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with any domestic product, constitutes a charge having equivalent effect. (17) According to the Court, a charge of that nature, which is imposed specifically upon an imported product to the exclusion of a similar domestic product, has, by altering its price, the same restrictive effect on the movement of products as a customs duty. (18)

33. However, pecuniary charges under a general system of internal taxation applying systematically to domestic and imported products according to the same criteria are covered by Article 90 EC. (19)

34. Nevertheless, the Court has stated that, for the purposes of categorising and providing a legal assessment of charges which are imposed on domestic and imported products according to the same criteria, it may be necessary to take into account the purpose to which the revenue from the charge is put, because it is specifically in the light of that purpose that charges, which are, formally speaking, neutral in terms of their structure and method of collection, may have a different real economic impact on the two categories of product.

35. Thus, if the revenue from a charge levied on both imported and domestic products is intended to finance activities for the special advantage of the taxed domestic product, the fiscal burden on the domestic product is, to a greater or lesser extent, neutralised by the advantages which the charge is used to finance, whilst the charge on the imported product constitutes a net burden. (20)

36. Therefore, in determining whether a parafiscal charge is compatible with Articles 25 EC and 90 EC, it is necessary, according to now settled case-law, to assess the extent to which the charges levied on the domestic product are offset by the advantages which the revenue from the charge is used to finance.

37. If the burden is fully offset, the charge in question constitutes a tax having equivalent effect, since it actually affects the imported product alone and will have, therefore, to be deemed to be entirely unlawful; but if the burden is offset in part only, the charge must be categorised as a discriminatory internal tax, since its impact is greater on the imported than on the domestic product, and it will, therefore, have to be reduced proportionately. (21)

38. Moreover, it is established in case-law that it is for the national court to make an assessment of that nature, since it alone has all of the evidence, including the matters of fact, required to do so. (22) For that purpose, it will have, first and foremost, to ascertain if the taxed product and the advantaged domestic product are the same. (23) It will also have to check, during a reference period, on the financial equivalence of the total amounts levied on domestic products in connection with the charge and the advantages afforded exclusively to those products. In that connection, the Court has stated that any other parameter, such as the nature, scope or indispensable character of those advantages, would not provide a sufficiently objective basis on which to determine whether a domestic fiscal measure is compatible with the provisions of the Treaty. (24)

39. Having completed this brief summary of the case-law, I consider it useful to point out, as have a number of Advocates General before me, that since the case-law which I have just cited requires the national courts to make assessments of an economic nature that are frequently complex and uncertain, it is, evidently, difficult to apply, (25) although the basic terms of that case-law are clear. (26) In the light of those difficulties, it should not be forgotten that in cases involving an assessment of the lawfulness under Community law of a parafiscal charge, the revenue from which is used to finance a State system of incentives for domestic production, the application of the prohibitions under Articles 25 EC and 90 EC may be viewed as a simple alternative to the application of the Treaty provisions on State aids. (27)

b) Does the surcharge laid down by Article 9(1) of the OEPS constitute a charge having equivalent effect within the meaning of Article 25 EC or discriminatory internal taxation within the meaning of Article 90 EC?

40. It is appropriate at the outset to consider some of the arguments advanced by SEP and the Netherlands Government, since their purpose appears to be to call into question the nature of the contested surcharge as a fiscal measure. More particularly, according to SEP, Article 9 of the OEPS is nothing other than an instrument permitting the distribution companies to pass on to their customers the contributions which they have undertaken to pay to the generating undertakings under the protocol. The Netherlands Government also maintains that the contested surcharge is justified on the basis of the protocol and insists that it represents an element of the payment due in respect of the transmission services.

41. Although the contested surcharge possesses features that distinguish it from a tax in the traditional sense, it does not seem to me that those arguments allow the conclusion that it is not caught by the definition of charge having equivalent effect within the meaning of Article 25 EC or of internal taxation within the meaning of Article 90 EC.

42. First, as we have seen above, the case-law defines the concept of charge having equivalent effect in particularly broad terms. It follows from that definition that the essence of the legal concept in question lies in the effects which a specific pecuniary charge has on trade between Member States. The formal aspects – such as the designation, the amount, the structure, the methods of collection, the destination, the recipient of the proceeds and the objectives pursued – are in fact irrelevant as regards its classification as a charge having equivalent effect, provided that the charge in question is legally binding (‘imposed unilaterally’). (28) In this case, the obligatory nature of the tax, which is payable by any user who meets the conditions laid down by Article 9(1) of the OEPS, is not in doubt, and it is likewise not in doubt that the use of the services of the net operator of the place in which the user is established is obligatory.

43. The concept of internal taxation within the meaning of Article 90 EC is equally broad. (29)

44. Secondly, the Court has already had occasion to assess, on the basis of Articles 25 EC and 90 EC, pecuniary charges that appear as elements in a tariff or a statutorily regulated price. (30)

45. Also as a preliminary point, it is necessary to consider the argument advanced by SEP, according to which Article 25 EC is not applicable because the contested surcharge relates to the tariff for the transmission service and not the cost of the electricity. SEP also points out that this service is provided by Netherlands net operators within Netherlands territory.

46. As is well known, Article 25 EC relates only to charges on goods. Were SEP’s argument to be endorsed, the application of that provision would, therefore, be ruled out in this case, simply on the ground that no product is affected.

47. In that connection, it must first be pointed out that the Court has already had occasion to find that electricity constitutes a product within the meaning of the Treaty provisions on the free movement of goods. (31) Ruling on an action for failure to fulfil obligations involving a breach of Article 31 EC, the Court also pointed out that ‘the services needed for the import or export of electricity and its transmission and distribution merely constitute the means for supplying users with goods within the meaning of the Treaty’, (32) recognising, therefore, that those services are of an ancillary nature, as compared with the subject-matter of the service provided.

48. It is necessary next to point out that the concept of charge having equivalent effect can embrace any charge that affects domestic or foreign goods because they cross a border, whatever the method of collection. Those conditions are also met by a tax which is triggered, not by the import or export of a product, but by the provision of a service which is necessary for or linked to the conduct of such operations, (33) or if it is, in any event, capable of affecting the movement of the goods in question within the Community. It seems clear to me that, since it indirectly affects the goods in question, a charge levied on the provision of transmission services and determined according to the quantity of goods transmitted is, in principle, capable of having such an effect.

49. Moreover, the Court has already had occasion to rule on a question similar to that at issue here, albeit with reference to Article 90 EC alone. In the Court’s judgment in Schöttle , (34) which the Commission cites in its written observations, the Court was seised of a number of questions concerning the interpretation of Article 90 EC in relation to a tax in force in Germany on the transport of goods by road. Dismissing the arguments advanced by the German Government, which maintained that the tax in question was not caught by Article 90 EC, since it did not affect the product as such, the Court held that a tax such as the tax at issue in that case, ‘imposed on international transport of goods by road according to the distance covered on the national territory and the weight of the goods in question’, (35) must be regarded as ‘taxation imposed indirectly on products’. (36) The Court found that ‘such a tax which has an immediate effect on the cost of the national and imported product must by virtue of Article 9[0] be applied in a manner which is not discriminatory to imported products.’ (37)

50. For the reasons set out above, I do not consider that an assessment of the lawfulness of the contested charge on the basis of Article 25 EC must be ruled out simply because the event that triggers that charge resides in a service (transmission) that is an intrinsic part of the distribution chain of the product at issue.

51. Having clarified all of those points, it is necessary to consider the characteristics of the price surcharge at issue in order to determine whether it falls within the prohibition under Article 25 EC or the prohibition under Article 90 EC.

52. It is a matter of agreement that the charge in question affects electricity produced in the Netherlands and imported electricity, without distinction, using the same collection methods. That apparent neutrality would seem, therefore, to preclude the application of Article 25 EC and suggest instead that any assessment should be based on Article 90 EC.

53. However, the case-law mentioned above provides that, (38) before arriving at that conclusion, it is necessary to determine whether that neutrality is lost in the light of the purpose for which the revenue is used. If, in fact, the charge on the domestic product was to be fully offset by the advantages that might accrue to that product as a result of the allocation of the revenue resulting from the application of the contested surcharge, it would be Article 25 EC and not Article 90 EC that would apply, because, appearances notwithstanding, the surcharge would in reality affect only the imported product.

54. Although it is settled case-law that it is for the national court to make that assessment, I none the less consider it appropriate that the Court should, within the limits of its jurisdiction, provide some guidance on the matter, taking account, in particular, of the arguments submitted by the parties in the national proceedings.

55. It is with that in mind that I make the following observations.

56. It is apparent from the national legislation at issue and the order for reference that the sums levied by the net operators pursuant to Article 9(1) of the OEPS had to be paid over by the latter to SEP. Those sums, along with the sums collected on the basis of Article 9(2), had to be used, subject to a ceiling of NLG 400 000 000, to cover the non-recoverable costs for 2000, while any excess was to be paid by SEP to the Minister for the Economy and was intended to finance coverage of the non-recoverable costs under Article 7 of the OEPS for the years subsequent to 2000 (Article 9(5), in fine).

57. On the basis of that mechanism, all of the sums levied were to be used to cover the non-recoverable costs and had to be paid to SEP (or the EGUs) in accordance with Article 9(4) of the OEPS or, in the case of sums in excess of NLG 400 000 000, Article 7 of the OEPS respectively.

58. Therefore, were it to be proved that the payments for which those articles provide were actually made and that the relevant amounts were actually used, and used in full, to benefit the national electricity producers – in such a way as to produce pecuniary equivalence between the charges and the advantages – it would seem logical to conclude, (39) as the Commission does in its observations, that the economic impact of the contested surcharge on national electricity was entirely neutralised.

59. However, in order to reach that conclusion, the national court will have first of all to determine whether: (i) the sums produced by levying the contested surcharge were in fact destined for a use which gave the national product a specific advantage and (ii) whether ‘the taxed product and the advantaged national product are the same’.

60. As regards (i), the national court will have to ascertain whether and to what extent, in the absence of the coverage provided by the revenue from the contested price surcharge or any other form of public intervention, the relevant non-recoverable costs would have, directly or indirectly, affected the balance sheet of the EGUs.

61. Given that the national court appears to be assuming that liability for those costs lay exclusively with SEP, (40) that assessment essentially involves reviewing the financial mechanisms through which the statutory cooperation between the four EGUs was achieved, through the intermediary of SEP, during the period when the costs in question were allocated. (41)

62. Furthermore, the possibility cannot be excluded that, in its assessment, the national court will also have to have regard to the protocol, in order to determine the manner in which it provided for a significant transfer of the non-recoverable costs to the distribution companies (or, at any event, to the bodies required to levy the contested surcharge). (42) In that connection, it should be noted that, according to SEP, Essent had undertaken payment of what it was owed under the protocol for 2000 even before Article 9 of the OEPS had entered into force. The surcharge for which that article provides seems, therefore, primarily to benefit the distribution sector, (43) by enabling the individual companies to recover from consumers what they have already paid to or, at any rate, owe to SEP; it is therefore for the national court to assess whether, if it is impossible to effect recovery in that way, those companies are still required to make the payment stipulated for under the protocol.

63. Were an analysis of that nature – and, judging from the parties’ answers to the Court’s written questions, it is not likely to be a straightforward analysis – to reveal that, during the period between 1 August and 31 December 2000, the EGUs were, directly or through their financial participation in SEP, primarily or subsidiarily liable for the non-recoverable costs at issue, the requirement concerning the existence of a specific advantage for national production for the purposes of applying the criterion of offsetting could be deemed to have been met. It does not, however, seem to me that the mere circumstance that the payments provided for by Articles 9(4) and 7 of the OEPS were made for the benefit of SEP and not the EGUs has the effect of precluding at the outset – as the Netherlands Government and SEP maintain – the existence of an advantage of that nature, if, at any event, it were possible to ascertain that the sums paid were used in fact and in full to cover the costs affecting the EGUs, either directly or indirectly.

64. The Netherlands Government also disputes the existence of an advantage benefiting domestic production, on the ground that the payments to SEP, for which Article 9(4) of the OEPS provides, did not lead to a reduction in the cost of domestically produced electricity.

65. In that connection, it is sufficient to point out that, according to the case-law, it is not necessary that the revenue from the tax should be used to cover production costs, since the pecuniary charges resulting for the domestic product from the application of that tax may certainly be offset through, for example, the financing of promotional or research activities which, although benefiting the domestic product, do not involve advantages that are likely to have an immediate impact on its selling price.

66. As regards the question set out under (ii) in point 59 above, it is primarily for the national court to determine whether the requisite identity between the taxed product and the advantaged national product is precluded as a result of the method used to collect the surcharge at issue and, in particular, of the fact that it is not paid by the electricity producers but is passed on to the final consumer. According to Essent and the Netherlands Government, that fact rules out the possibility of offsetting in the sense that the Court’s case-law requires.

67. That argument does not appear to be entirely without foundation.

68. It is indeed the case that the imposition of a price surcharge or a price supplement which is passed on to the final consumer may, in a system that is open to competition, result in a financial burden on the product that is directly or indirectly affected, because it will affect its market cost. It is, none the less, open to question whether that burden can be taken into consideration in assessing whether there is offsetting within the meaning of the abovementioned case-law, since, as we have seen, that assessment is based on a comparison of expenditure and advantages in exclusively pecuniary terms.

69. Furthermore, given that the contested surcharge is levied at the expense of the consumer, is incorporated into the transmission cost rather than the electricity price and is applied according to methods which are not discriminatory, it seems legitimate to question whether it is, in fact, possible to consider that the imported product is affected by any kind of financial burden or that the movement of the product is in some way affected, or indeed that, as a result of the application of the surcharge, that product suffers a real competitive disadvantage, distinct from any disadvantage deriving from the use of the revenue from the surcharge to finance measures to benefit domestic products (which may, if relevant, be challenged on the basis of the Treaty provisions on State aids).

70. However, the argument of Essent and the Netherlands Government does not appear to pass the test laid down in the case-law, which requires not that the persons obliged to pay the tax and the persons benefiting from the activities financed from the revenue generated by that tax should be the same, but simply that the affected (domestic) product and the advantaged product should be the same, so as to exclude any possibility of offsetting, if the revenue from the levy is used to benefit a productive activity other than the activity on which the burden falls. Where the products are the same, it therefore seems immaterial whether the levy at issue is imposed on the production (and import) or on the consumption of a product.

71. Moreover, the situation in which the consumer is liable for a tax and that in which the consumer is in fact the person to whom the tax, collected at the expense of the producer and the importer , is passed on, as a result of an increase in the selling price of the affected product, do not seem to me to differ greatly from an economic perspective, since, in both situations, the financial burdens resulting from the tax are borne by persons other than the producer or importer. None the less, in the latter circumstance, the case-law acknowledges that offsetting may be possible. (44)

72. If, on completion of its analysis, the national court concludes that the revenue from the contested surcharge was actually intended to finance costs directly or indirectly affecting domestic electricity and that this allowed the producers of the latter to offset financial burdens which they had actually borne as a result of that surcharge, it will have to assess whether those burdens were offset in full, as the wording of Article 9 of the OEPS would seem to indicate, or merely in part. In the former case, the contested surcharge could be categorised as a charge having equivalent effect within the meaning of Article 25 EC, and in the latter as discriminatory internal taxation under Article 90 EC.

73. If, conversely, the national court concludes that there has been no offsetting, then neither of those articles will apply, given that the contested surcharge applies, without distinction, to the domestic and the imported product, in accordance with non-discriminatory procedures.

c) Conclusion in relation to the first question referred

74. On the basis of all of the foregoing considerations, I propose that the Court should give the following answer to the first question referred for a preliminary ruling:

A price surcharge, such as the surcharge at issue in the main proceedings, which is imposed, without discrimination and subject to the same conditions, on the transmission of both national and imported electricity, constitutes a charge having equivalent effect to a customs duty, prohibited by Article 25 EC, where the revenue from that surcharge is intended to finance activities for the benefit of the domestic product alone, and the resulting advantages offset in full the financial burden on that product. If the advantages offset the financial burden on that product in part only, then that surcharge constitutes discriminatory internal taxation, which is prohibited under Article 90 EC.

It is for the national court to make the assessments necessary to determine how the charge at issue is to be legally categorised. In that context, the national court should consider whether, and to what extent, the costs, whose coverage the revenue from the contested price surcharge is designed to secure, affect, directly or indirectly, the national electricity producers.

B – The second question referred

1. Preliminary observations

75. By its second question, the national court asks whether the arrangements put into place by Article 9(1) of the OEPS constitute State aid within the meaning of Article 87(1) EC.

76. In that connection, it is necessary to point out that a national court may be required to interpret the concept of aid under Article 87(1) EC, as a result of the direct effect which the case-law has conferred on the last sentence of Article 88(3) EC. (45) It is settled case-law that it is for the national courts to uphold the rights of individuals in the event of a possible breach by the authorities of the prohibition on putting aid into effect which that provision lays down. (46)

77. With regard to the measures which may or must be taken to ensure this legal protection, the Court has stated that ‘where such a breach is invoked by individuals, national courts must take all the consequential measures, in accordance with national procedures, as regards both the validity of measures giving effect to the aid and the recovery of financial support granted in disregard of Article 88(3) EC’. (47)

78. Even if the national court has not raised a question to that effect, it is, in any event, worth pointing out that, pursuant to the Court’s case-law, consideration of an aid measure must necessarily also take into account the method of financing the aid in a case where that method forms an integral part of the measure. (48) The methods of financing aid may in fact render it incompatible with the common market, even if it satisfies other provisions of the Treaty, in particular Articles 25 EC and 90 EC. (49)

79. In its judgment in Van Calster and Others , the Court also stated that, in circumstances of that nature, ‘in order to ensure the effectiveness of the obligation to notify and the Commission’s full and appropriate consideration of an aid, the Member State is required, in order to comply with that obligation, to notify not only the planned aid in the narrow sense, but also the method of financing the aid inasmuch as that method is an integral part of the planned measure’. (50) Accordingly, according to the Court, ‘since the obligation to notify also covers the method of financing the aid, the consequences of a failure by the national authorities to comply with [the last sentence of Article 88(3) EC] must apply also to that aspect of the aid’. (51) It follows that ‘where an aid measure of which the method of financing is an integral part has been implemented in breach of the obligation to notify, national courts must in principle order reimbursement of charges or contributions levied specifically for the purpose of financing that aid’. (52)

80. In its judgment in Streekgewest , the Court held that ‘for a tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid measure under the relevant national rules, in the sense that the revenue from the tax is necessarily allocated for the financing of the aid’ and have a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of the aid with the common market. (53)

81. In this case, the surcharge at issue is levied specifically and exclusively to enable SEP and/or the EGUs to cover the non-recoverable costs which they have to bear. Consequently, the Court’s requirement that the revenue from the charge be hypothecated to financing the public measure – and it will be for the national court to assess whether the latter constitutes State aid – appears to me to be established.

82. Based on the abovementioned case-law, the claims which Essent has made against Aldel under Article 9(1) of the OEPS could therefore be rejected, if it were established that the system set in place by that article comprises an aid measure within the meaning of Article 87(1) EC, and that the measure was not notified to the Commission.

83. I shall therefore consider those two aspects below.

2. Do the combined provisions of Article 9(1) and (4) of the OEPS comprise an aid measure within the meaning of Article 87(1) EC?

84. It is the settled case-law of the Court that, in assessing whether a State measure constitutes State aid, it is necessary to ascertain whether four cumulative conditions are met, namely the existence of a benefit for an undertaking, the selective nature of the measure, the financing of that measure by the State or through State resources, and its effect on trade between Member States and the distortion of competition resulting therefrom. (54)

85. As regards the first and second of those conditions, it seems clear to me that the measure at issue confers a benefit on SEP and/or the EGUs and that, since that benefit is confined to the electricity generating sector, it is of a selective nature.

86. The fact which the Netherlands Government emphasised, namely that the net operators were, in any event, required to contribute to covering the non-recoverable costs under the protocol, does not seem to me to be of crucial importance. Article 9 of the OEPS places those required to collect the surcharge under a legal obligation to pay the resulting revenue to SEP, an obligation which is separate from and independent of any obligation which may be incumbent upon them under the protocol. (55) Furthermore, the mechanism which Article 9 of the OEPS lays down enables SEP to rely on greater security of payments, since the relevant funds come from the levying of parafiscal charges, and, therefore, to reduce or exclude the risk of those bound by the protocol defaulting or being unable to pay. (56)

87. However, were it to prove that at the time when the payments for which Article 9(4) of the OEPS provides were made SEP had already received, in whole or in part and in implementation of the protocol, the NGL 400 000 000 for which Article 9(5) provides, (57) the benefit to SEP and/or the EGUs from the regime at issue would be correspondingly reduced, to the point where it may be confined to the excess only. (58)

88. It is for the national court to make the relevant assessments.

89. It seems to me that the fourth condition concerning the effects of the measure at issue on competition and on trade between the Member States may also be considered to be fulfilled. In that connection, I shall merely point out that the Court takes a particularly broad approach to this. Indeed, it is settled case-law that ‘it is necessary, not to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition’. (59) In particular, where aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid. (60)

90. Although it is not directly involved in the activity of producing electricity, in its capacity as the joint subsidiary of the EGUs, SEP was involved in marketing the electricity which they produced, as well as imported electricity. Formally at least, it operated within a system of competition on the market for the import of electricity outside the field of public supply, (61) managed the Demkolec coal gas plant and was active in the urban heating sector. As regards the effect of the measure at issue on intra-Community trade, it follows from the above that SEP’s activities were not limited to the domestic arena and that it was also involved in cross-border trade.

91. It is, however, for the national court to make the relevant assessments. (62)

92. By contrast, whether the third condition, concerning the financing of the measure from State resources, is met requires a more complex analysis. That matter was comprehensively aired before both the national court and the Court of Justice. I shall therefore now consider whether that condition is met.

93. In my analysis, I shall deliberately avoid entering into the debate, which has been fuelled, inter alia, by some earlier decisions of the Court, (63) as to the need for there to be public financing if a State measure is to be categorised as aid within the meaning of Article 87 EC. I shall simply point out that, as of its judgment in Sloman Neptun , (64) the Court has repeatedly and unhesitatingly affirmed the principle that an aid measure must be financed, directly or indirectly, through State resources , (65) thereby demonstrating that it regards that requirement as intrinsic to the concept of aid.

94. That principle was reconfirmed (66) by the Court in its judgment in PreussenElektra , (67) in which it did not categorise as State aid within the meaning of Article 87(1) EC national legislation which, on the one hand, imposed on private electricity supply undertakings the obligation to purchase electricity produced from renewable energy sources at minimum prices higher than the economic value of that type of energy and, on the other, allocated the financial burden arising from that obligation between the supply undertakings and the upstream private electricity net operators. According to the Court, in the absence of any direct or indirect transfer of State resources, the fact that the legislation conferred an undeniable economic advantage on undertakings producing electricity from renewable sources and that the advantage was the consequence of intervention by the public authorities was not sufficient to categorise the contested measure as aid. (68)

95. More recently, the Court held, in its judgment in Pearle and Others , (69) that aid measures were not involved in by-laws adopted by a trade association governed by public law for the purpose of funding – using resources collected from its members and compulsorily earmarked for that purpose – a joint advertising campaign decided upon by the members themselves, since it was established that that funding had been carried out using resources which the organisation never had the power to dispose of freely. In particular, the Court attached significance to the fact that the costs incurred by the public association for the advertising campaign were offset in full by the levies imposed on the undertakings. Consequently, in the Court’s view, that association’s action ‘did not tend to create an advantage which would constitute an additional burden for the State or that body’, (70) which served ‘merely as a vehicle for the levying and allocating of resources collected for a purely commercial purpose previously determined by the trade and which had nothing to do with a policy determined by the Netherlands authorities’. (71)

96. It is above all with reference to the principles which the Court established and the solutions it adopted in the above two cases that it is necessary to assess whether the measure laid down for the benefit of SEP by the national legislation at issue met the condition of financing through State resources. In particular, the Kingdom of the Netherlands maintains that – in the light precisely of the Court’s findings in those judgments – the outcome of that assessment must be that it does not.

97. In that connection, I should point out first of all that the Court’s judgment in PreussenElektra is likely to have a particularly significant impact on the markets during the process of deregulation when, more especially in the case of the market in electricity, the non-recoverable costs consequent on liberalisation are particularly material. In that area, the Commission’s powers to monitor national support measures for companies affected by such costs have been significantly reduced by the rigid application of the condition concerning financing through State resources, particularly bearing in mind that such measures are often designed in such a way that the economic burden of recovering those costs falls on final consumers, not infrequently as a result of the introduction of parafiscal charges. (72) The risk is, therefore, that State measures capable of having a significant effect on the outcome of the liberalisation processes under way in the Member States will de facto escape any form of control based on Community rules relating to State aid and will also escape the strict framework which, by contrast, applies to measures subject to such control, in accordance with the guidelines for analysing aid linked to non-recoverable costs issued by the Commission. (73)

98. It is primarily for that reason that I consider that the solution which the Court adopted in its judgment in PreussenElektra cannot be extended beyond the specific circumstances of fact which justified its adoption.

99. One of the factors which the Court considered determinative in reading its findings in PreussenElektra was the private character of the persons required to pay the charges imposed under the Stromeinspeisungsgesetz (Law on feeding electricity from renewable sources into the public grid). The relevance of that fact emerges clearly both from the operative part of the judgment and from paragraphs 55 and 56 of the judgment, in which the Court, in the light of the information provided by the German Government concerning the composition of the shareholding in the undertakings involved (PreussenElektra and Schleswag), reformulated the question submitted by the Landgericht Kiel (Regional Court, Kiel) as asking essentially whether the charges imposed under the German rules (the obligation to purchase at a fixed price and the allocation of the financial burden arising from that obligation) on private electricity supply undertakings and upstream private network operators constitute State aid. (74) Moreover, the mechanism set in place under the Law on feeding electricity from renewable sources through the public grid did not provide for the intervention of intermediaries, acting as collectors and/or administrators of the sums earmarked for subsidy; since the advantage to the beneficiary undertakings consisted in the guarantee of the sale of the energy they produced and the difference between the economic value of that energy and the price, in excess of that value, laid down by law, that advantage was automatically conferred when the supply contracts were concluded and the consideration paid.

100. Based on those elements, it is therefore possible to consider that the scope of the judgment in PreussenElektra is limited to circumstances in which a subsidy granted by the public authorities to specific undertakings is exclusively financed through the imposition of charges affecting private operators and is paid to the beneficiaries by those operators directly .

101. Conversely, the Court’s ruling does not concern (i) cases in which the subsidy is financed by imposing charges on public undertakings or through funds made available to those undertakings and (ii) cases in which the resources designed to finance the subsidy derive from charges imposed on private persons (parafiscal contributions, for example) and pass through undertakings or organisms which act as intermediaries before being accorded to the beneficiaries.

102. In circumstances of that nature, the subsidy in question could be caught by the concept of aid within the meaning of Article 87(1) EC, were it to be proved that it was financed through State resources. Pursuant to the case-law of the Court of Justice, that situation exists when the resources utilised are directly or indirectly under State control. In its judgment in France v Ladbroke Racing and Commission (75) and, more recently, in its judgment in France v Commission , (76) the Court explicitly confirmed that the concept of State resources within the meaning of Article 87(1) EC ‘covers all the financial means by which the public sector may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector’. Consequently, ‘even though the sums involved in the measure [in question] are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State aid’. (77)

103. As regards more specifically the situation, set out in point 101 under (i) above, of a measure benefiting from the aid through the imposition of charges on public undertakings or, at any rate, the use of funds originating from such undertakings, the Court stated in the judgment in Stardust that such funds must be regarded as State resources where the State is capable, ‘by exercising its dominant influence over such undertakings, of directing the use of their resources in order, as occasion arises, to finance specific [interventions] in favour of other undertakings’. (78) It is not necessary, for that purpose, to show that there has been a transfer from the State to those undertakings of specific contributions to finance the aid measure.

104. That a body is public in nature does not, however, mean that the resources available to it have automatically to be categorised as ‘State’ resources within the meaning of Article 87(1) EC. As we have seen above, (79) categorisation of that nature may be precluded if the body served ‘merely as a vehicle for the levying and allocating of resources collected’ and its intervention did not tend to ‘create an advantage which would constitute an additional burden for the State’.

105. Furthermore, for a measure put into effect by a public undertaking to be able to be deemed to be aid within the meaning of Article 87(1) EC, it must, in any event, be attributable to the State, in the sense that it is the result of an action by the public authorities. (80)

106. With regard, however, to the situation described in point 101 above under (ii), in which the resources needed to finance the aid derive from charges imposed on private persons and are allocated to the beneficiaries via undertakings or bodies acting as intermediaries, it must first be said that it is settled case-law that there is no need to draw any distinction according to whether the aid is granted directly by the State or by public or private bodies designated or appointed by that State. (81)

107. It is then necessary to refer more specifically to the case-law concerning aid measures financed through parafiscal charges or compulsory contributions. According to that case-law, the funds which are financed through compulsory contributions imposed by State legislation and are managed and apportioned in accordance with the provisions of that legislation must be regarded as State resources within the meaning of Article 87(1) EC, even if they are administered by institutions distinct from the public authorities. (82)

108. It is certainly possible to object that that case-law has been impliedly superseded by the judgment in PreussenElektra , at least in circumstances where the role of the intermediary is merely to collect the contribution or is, in any event, restricted to exercising purely accounting checks over the funds collected and, therefore, precludes the exercise of any margin of discretion over the use and destination of the funds. In point of fact, objectively speaking, that situation is hard to distinguish, in economic terms, from a situation in which the sums earmarked for financing the support measure are transferred directly from the persons required to pay the contribution to the undertakings that benefit from the measure. (83)

109. However, I consider that this objection may be overcome, if the intervention of an intermediary which has been designated by the State – even if that intermediary is merely responsible for collecting a charge or exercising accounting checks – is regarded as capable of interrupting the direct flow of the funds from the persons liable for the charge to the beneficiaries, so that it is possible to identify a point at which, indirectly at least, those funds are under State control, even though the State is not free to allocate them, and thus acquire the character of State resources. In particular, an interpretation of that nature seems to me to be possible in two sets of circumstances at least, namely where the intermediary is a public body and where the compulsory contributions imposed on undertakings or individuals are paid into a fund, whether public or private, created or conceived by the State for the purpose of distributing the aid in accordance with the law, regardless of the degree of autonomy that that fund enjoys in administering and allocating the sums collected.

110. It does not seem to me that the judgment in Pearle and Others may be regarded as an obstacle to that approach. As we have seen, on that occasion, the Court held that State resources were not involved in the case of funds deriving from compulsory contributions paid to a trade association by its own members, the levying of which was possible on the basis of the legal regime applicable to that association and was designed to fund a joint advertising campaign for the benefit of members themselves. Among the various factors cited by the Court to justify that conclusion (the fact that the funds were not available to the association in question, the latter’s role being limited to levying the contributions, the award of an advantage without an additional burden for the State or the public body concerned), the fact that the initiative to promote the advertising campaign in question and the proposal for allocating the relevant financial burden came from the commercial sector involved and not from the public authorities seems to me to be determinative in the scheme of the Court’s reasoning, since it is apt to exclude any imputation of the contested measure to the State. (84)

111. In the light of the foregoing, it is necessary to consider whether the payments to SEP which were made in accordance with the combined provisions of Article 9(1) and (4) of the OEPS entail the use of ‘State resources’ within the meaning of Article 87(1) EC.

112. As we have seen, the mechanism put into place by the national rule at issue provided for the imposition of a surcharge for the transmission service to be borne by electricity consumers, the levying of that surcharge by the network operators and transfer of the revenue from that surcharge to the ‘designated company’ (SEP), which was responsible for exercising accounting control over the funds transferred and was required to pay to the Minister for the Economy any sums in excess of NLG 400 000 000. The dispute pending before the national court relates, more particularly, to the sums payable by a private consumer, Aldel, in accordance with that surcharge, to the operator of the network for the territory in which it is established, namely Essent.

113. It should first be pointed out that, in response to a written question from the Court, Essent explained that, during the reference period, that is to say between 1 August and 31 December 2000, it was a wholly-owned subsidiary of Essent NV, the shares in which were, in turn, owned as to 100% by municipalities and provinces, and was thus entirely in public hands. It follows that, as the Commission correctly argued in its observations, during that period Essent was a public undertaking within the meaning of Article 2(1)(b) of Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings. (85)

114. Pursuant to the Court’s case-law, the resources available to Essent (86) must, therefore, in principle be regarded as public resources. As regards the objection raised by the Netherlands Government concerning the fact that Essent acted only as a collector of the charge, I would refer to my comments in points 108 to 110 above. (87)

115. Secondly, it seems to me to be relevant that SEP was required to carry out accounting checks on the sums derived from the revenue from the surcharge at issue, for which it was answerable to the Minister for the Economy. It was presumably only once those checks were completed that the sums in question were made available to SEP, which was, in any event, required to use them for specific purposes, that is to say to cover the costs resulting from investments made at the instigation of the public authorities.

116. Finally, it is also relevant that, under Article 9(5) of the OEPS, SEP had to pay to the Ministry of the Economy the sums in excess of NLG 400 000 000.

117. Based on the above considerations, it seems to me to be possible to conclude that the payments made for the benefit of SEP under the combined provisions of Article 9(1) and (4) of the OEPS involved the use of ‘State resources’ within the meaning of Article 87(1) EC.

118. On the basis of all of the foregoing considerations, I propose that the Court should give the following answer to the second question referred for a preliminary ruling:

A national rule pursuant to which the revenue from a price surcharge temporarily imposed on the consumption of electricity and collected by the net operators is to be paid by them to an undertaking which is the joint subsidiary of the national electricity producers and which is required, under that rule, to retain a part of that revenue to cover the non-recoverable costs resulting from the investments made by that undertaking or the producer undertakings before the market was opened to competition, as well as to pay over to the State any excess, similarly intended to cover the abovementioned costs, may constitute State aid within the meaning of Article 87(1) EC.

It is for the national court to assess whether the conditions necessary for Article 87(1) EC to apply are met.

3. Compliance with the obligation to notify

119. Although the national court is not asking the Court about the interpretation of Article 88(3) EC, on the assumption that the obligation to notify laid down by that provision was not met by the Kingdom of the Netherlands, I none the less consider it useful to make a few brief observations on the arguments advanced by the Netherlands Government to challenge the failure to comply with its obligation which has been imputed to it.

120. The Kingdom of the Netherlands contends that it ‘brought to the notice’ of the Commission, in the context of the procedure concerning aid N 597/1998 , the whole text of the OEPS draft law. That communication is said to have taken the form of the letter of 30 August 2000, in which the Netherlands specifically drew the Commission’s attention to the text of Article 9 of that draft. The Commission does not dispute that the whole of the draft law was attached to the letter of 30 August 2000. Moreover, it is clear from the text of that letter, which the Netherlands Government has provided in response to a request from the Court, that that government refers explicitly to Article 9 of the OEPS, albeit solely in the paragraph entitled ‘Supplementary information on the Protocol for the purposes of applying Article 24 of Directive 92/96’.

121. I should point out that the N 597/1998 procedure came to an end with the decision of 25 July 2001.

122. However, the provisions of Article 9 of the OEPS entered into force on 29 December 2000 and stipulated that the revenue from the surcharge levied in accordance with Article 9(1) was to be paid by the net operators to SEP by 1 July 2001 (Article 9(4)). The Netherlands thus implemented that regime without waiting for the decision whereby the Commission closed the procedure in the context of which the provision establishing that regime was communicated to the Commission.

123. Furthermore, as part of that implementation, there was provision for levying the surcharge under Article 9(1) of the OEPS, with retroactive effect from 1 August 2000, that is to say a date preceding the letter by which the Commission was informed of the measures laid down by that article. In that connection, it may be useful to bear in mind that in its judgment in Van Calster and Others , the Court found to be unlawful parafiscal charges designed to finance support measures to benefit certain agricultural sectors, which had been levied with retroactive effect to cover a period prior to the Commission’s decision on the compatibility of those measures. According to the Court, by giving the imposition of those measures retroactive effect, the State concerned had acted in breach of the obligation to give notification prior to implementing the aid.

124. It follows that, even were the information communicated in the letter of 30 August 2000 to have to be deemed to constitute notification for the purposes of Article 88(3) EC, this would not be sufficient to consider that the obligation laid down by Article 88(3) EC had been complied with.

V – Conclusion

125. In the light of the foregoing, I propose that the Court should declare that:

(1) A price surcharge, such as the surcharge at issue in the main proceedings, which is imposed, without discrimination and subject to the same conditions, on the transmission of both national and imported electricity, constitutes a charge having equivalent effect to a customs duty, prohibited by Article 25 EC, where the revenue from that surcharge is intended to finance activities for the benefit of the domestic product alone, and the resulting advantages offset in full the financial burden on that product. If the advantages offset the financial burden on that product in part only, then that surcharge constitutes discriminatory internal taxation, which is prohibited under Article 90 EC.

It is for the national court to make the assessments necessary to determine how the charge at issue is to be legally categorised. In that context, the national court should consider whether, and to what extent, the costs, whose coverage the revenue from the contested price surcharge is designed to secure, affect, directly or indirectly, the national electricity producers.

(2) A national rule pursuant to which the revenue from a price surcharge temporarily imposed on the consumption of electricity and collected by the net operators is to be paid by them to an undertaking which is the joint subsidiary of the national electricity producers and which is required, under that rule, to retain a part of that revenue to cover the non-recoverable costs resulting from the investments made by that undertaking or the producer undertakings before the market was opened to competition, as well as to pay over to the State any excess, similarly intended to cover the abovementioned costs, may constitute State aid within the meaning of Article 87(1) EC.

It is for the national court to assess whether the conditions necessary for Article 87(1) EC to apply are met.

(1) .

(2) – OJ 1996 L 27, p. 20.

(3) – The four EGUs were: NV Elektriciteits-Productiemaatschappij Oost- en Noord-Nederland (EPON), NV Elektriciteits-Productiemaatschappij Zuid-Nederland (EPZ), NV Elektriciteitsproductiemaatschappij Zuid-Nederland (EZH) and NV Energieproductiebedrijf UNA (UNA).

(4) – Created in June 1949, SEP was a limited company originally responsible for administering mutual assistance in the event of breakdowns by making the best possible use of national and international connections (see Commission Decision 91/50/EEC of 16 January 1991 relating to a proceeding under Article 85 of the EEC Treaty (IV/32.732 – IJsselcentrale and others) (OJ 1991 L 28, p. 32). On 29 December 2000, SEP became Nederlands Elektriciteit Administratiekantoor BV (NEA).

(5) – In November 1999, EPON was taken over by the Belgian group Electrabel, and EZH was taken over by the German company PreussenElektra. Again in 1999, UNA was acquired by the American firm Reliant and, in 2002, ownership of it passed to NUON, controlled by provinces and municipalities.

(6) – Pursuant to Article 2 of the 1989 Law on electricity, as the ‘designated company’, SEP, together with the EGUs, was entrusted with a task of general economic interest, consisting in ensuring the national public supply of electricity at the lowest possible cost (see Case C-157/94 Commission v Netherlands [1997] ECR I‑5699).

(7) – Essent, however, disputes that the distribution companies were, as such, parties to that protocol.

(8) – Namely SEP.

(9) – NEA, Elektrabel Groep BV and Edon Groep BV became successors to SEP, EPON and Edon, respectively, in the contract.

(10) – Within the meaning of Article 1(1)(k) of the 1998 Law on electricity.

(11) – In the context of the main proceedings, third-party notices were served on SEP and Saranne BV by Essent, and on the State by Aldel.

(12) – Under the 1998 Law on electricity, SEP, as the designated company, had a monopoly over the import of electricity for public use, with a voltage above 500 V (see Case C-393/92 Almelo and Others [1994] ECR I-1477). A private user such as Aldel was, therefore, entitled to import electricity for its own use simply on the basis of that law. Furthermore, 1 January 2000 saw the completion of the first stage in liberalising the Netherlands electricity market in implementation of Directive 96/92, with the opening-up of the large-consumer market segment. The question whether, during the period when the contested surcharge applied, that option actually translated into a working possibility for Aldel to import electricity depends both on the contractual relations linking it at the time to the national generating undertakings and on the conduct on the market of the latter and SEP (see, in that respect, Decision 91/50).

(13) – See, in particular, Case C-421/97 Tarantik [1999] ECR I-3633, paragraph 33; Case C‑390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 19; and Joined Cases C-393/04 and C‑41/05 Air Liquide Industries Belgium [2006] ECR I-5293, paragraph 24.

(14) – See, to that effect, Case 15/81 Schul [1982] ECR 1409, paragraph 26; see also Joined Cases 2/62 and 3/62 Commission v Luxembourg and Belgium [1962] ECR 425, and p. 431 in particular.

(15) – See, to that effect, Case 10/65 Deutschmann [1965] ECR 469 and Case 57/65 Lütticke [1966] ECR 205, which have been followed by many other decisions.

(16) – In practically all of the cases in which the Court has been required to interpret those articles in relation to a specific national fiscal rule, or to assess the legality of such a rule on the basis of those articles, the Court has considered it necessary to decide whether the rule in question falls within the scope of the one article or the other. The Court adopted a less dichotomous approach in Case C-228/98 Dounias [2000] ECR I-577, paragraph 50.

(17) – See, inter alia, Case 24/68 Commission v Italy [1969] ECR 193, paragraph 9; Case 158/82 Commission v Denmark [1983] ECR 3573, paragraph 18; and Case C-347/95 UCAL [1997] ECR I‑4911, paragraph 18.

(18) – See Commission v Luxembourg and Belgium , cited in footnote 14, p. 828; Case 94/74 IGAV [1975] ECR 699, paragraph 10; and Case 77/76 Cucchi [1977] ECR 987, paragraph 13.

(19) – See, inter alia, UCAL , cited in footnote 17, paragraph 19.

(20) – See, inter alia, Case 73/79 Commission v Italy [1980] ECR 1533, paragraph 15; Joined Cases C‑78/90 to C-83/90 Compagnie commerciale de l’Ouest and Others [1992] ECR I-1847, paragraph 26; and UCAL , cited in footnote 17, paragraph 21.

(21) – See Case C-17/91 Lornoy and Others [1992] ECR I-6523, paragraph 21; Case C-72/92 Sharbatke [1993] ECR I-5509, paragraph 10; Compagnie commerciale de l’Ouest and Others , cited in footnote 20, paragraph 27; and UCAL , cited in footnote 17, paragraph 22.

(22) – See, inter alia, Compagnie commerciale de l’Ouest and Others , cited in footnote 20, paragraph 28, and Lornoy and Others , cited in footnote 21, paragraph 22.

(23) – See Case 105/76 Interzuccheri [1977] ECR 1029, paragraph 12, and Cucchi , cited in footnote 18, paragraph 19.

(24) – See Case C-266/91 CELBI [1993] ECR I-4337, paragraph 18.

(25) – That those difficulties exist is, in fact, borne out by the number of questions for a preliminary ruling which have been submitted on that point, even though the case-law is unambiguous.

(26) – Uncertainties linked to the assessments required to determine the scale of compensation had already been expressed by Advocate General Roemer in his Opinion in Case 77/72 Capolongo [1973] ECR 611, and p. 632 in particular, with the judgment in that case containing the first reference in the case-law to the criterion of offsetting. Some years later, Advocate General Trabucchi, in his Opinion in IGAV , cited in footnote 18, and Advocate General Reischl in his Opinion in Cucchi , cited in footnote 18, proposed that that criterion should be given a restrictive interpretation, taking the view that the decision in Capolongo should relate only to cases of ‘significant fraud’. Openly critical comments have been made by Advocate General Mayras (Case 222/78 ICAP [1979] ECR 1163) and Advocate General Gulmann (in CELBI , cited in footnote 24, point 15). Finally, Advocate General Tesauro has, on several occasions, highlighted the difficulties in applying the criterion of offsetting to individual cases of this kind (see, for instance, his Opinion in UCAL , cited in footnote 17).

(27) – See, to that effect, the Opinion of Advocate General Gulmann in CELBI , cited in footnote 24, point 15, and, before him, the Opinion of Advocate General Mayras in ICAP , cited in footnote 26.

(28) – Thus, for example, in the context of an action brought against the Italian Republic for failure to fulfil obligations, the Court ruled that a tariff set by a professional association and given legal effect by statute did not constitute a charge having equivalent effect, since the use of the services to which that tariff applied was not compulsory (see Case C-119/92 Commission v Italy [1994] ECR I-393, paragraphs 46 and 47).

(29) – See, for example, Case 20/76 Schöttle [1977] ECR 247, paragraphs 12 and 13.

(30) – See, inter alia, Interzuccheri , cited in footnote 23, which concerned two different surcharges on the price of sugar fixed by the Comitato interministeriale prezzi to finance an equalisation fund for sugar. In this case, the observations which SEP has submitted to the Court i ndicate that during the period when the contested surcharge applied, the tariff for transmitting electricity was fixed by a public body.

(31) – See Case 6/64 Costa [1964] ECR 585, which confirmed that electricity can fall within the scope of Article 31 EC in relation to national monopolies of a commercial character; Case C‑158/94 Commission v Italy [1997] ECR I-5789, paragraph 17; and Almelo and Others , cited in footnote 12, paragraph 28, in which the Court considered it clear that electricity constituted a product for the purposes of Article 28 EC. In Case C-213/96 Outokumpu [1998] ECR I‑1777, the Court assessed the compatibility with Articles 25 EC and 90 EC of a tax on electricity production.

(32) – See Case C-158/94 Commission v Italy , cited in footnote 31, paragraph 18.

(33) – In cases, for example, in which the charge represents the consideration payable for the issue of import licences or for health checks.

(34) – Cited in footnote 29.

(35) – Paragraph 16.

(36) – Operative part.

(37) – Paragraph 15.

(38) – See points 34 to 37 above.

(39) – It seems possible to arrive at that conclusion even in the absence of data concerning the total amount of the sums arising from the application of the contested surcharge or the percentage of electricity imported from other Member States and supplied – either directly or indirectly via SEP – to persons required to pay the surcharge during the period when it was in force.

(40) – However, both the Commission’s decision of 25 July 2001 and the introductory report to the text of the OEPS indicate that the obligations arising under the urban heating contracts rested with the undertakings which held the contracts. But the answers to the Court’s written questions appear to suggest that, until the end of 2000, liability for all of the non-recoverable costs lay with SEP. As of 1 January 2001, liability for the obligations arising from the urban heating contracts is said to have been transferred to the EGUs, on the basis of specific percentages, while liability for the costs generated by Demkolec continued to lie with SEP (via NV Demkolec, a 100% subsidiary of SEP), the owner of the plant, until the date on which it was transferred to NUON.

(41) – The answers to the Court’s written questions do not seem to contest the fact that, during the reference period, the four EGUs continued to operate on the basis of the 1986 cooperation agreement, which entrusted SEP with the task of selling all of the electricity produced by the EGUs and involved, among other things, a pooling of production costs as well as their allocation among the EGUs according to percentages that reflected each undertaking’s share in SEP’s capital. It is also apparent that SEP’s active role in the electricity supply sector came to an end when, on 1 January 2001, it was converted into NEA, the sole responsibility of which is to bring to a conclusion the operations set under way before 2001.

(42) – In its answers to the Court’s written questions, Essent states that, under the protocol, the production sector was entitled to ask the distribution sector for the sum of NLG 400 000 000 for 2000, even, presumably, if it was not possible for the distribution companies to recover those sums through transmission or supply charges.

(43) – I should, however, point out that the parties’ answers to the Court’s written questions indicate that, following the merger, Essent became one of the four shareholders in NEA (formerly SEP) and is also active in the production sector.

(44) – See Interzuccheri , cited in footnote 23, paragraph 15.

(45) – See, inter alia, Case 78/76 Steinike & Weinlig [1977] ECR 595, paragraph 14, and Case C‑189/91 Kirsammer-Hack [1993] ECR I-6185, paragraph 14.

(46) – See, inter alia, Case C-354/90 Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon [1991] ECR I‑5505, paragraph 12, and Lornoy and Others , cited in footnote 21, paragraph 30.

(47) – See Air Liquide Industries Belgium , cited in footnote 13, paragraph 42; see also Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon , cited in footnote 46, paragraph 12, and Case C‑174/02 Streekgewest [2005] ECR I-85, paragraph 17.

(48) – See Joined Cases C-261/01 and C-262/01 Van Calster and Others [2003] ECR I-12249, paragraph 49, and Joined Cases C-34/01 to C-38/01 Enirisorse [2003] ECR I-14243, paragraph 44.

(49) – See Van Calster and Others , cited in footnote 48, paragraph 47; see also, to that effect, Case 47/69 France v Commission [1970] ECR 487, paragraph 13.

(50) – Van Calster and Others , cited in footnote 48, paragraph 51.

(51) – Ibidem , paragraph 52.

(52) – Ibidem , paragraph 54.

(53) – Streekgewest , cited in footnote 47, paragraph 26; see also, to the same effect, Joined Cases C‑266/04 to C-270/04, C-276/04 and C-321/04 to C-325/04 Casino France and Others [2005] ECR I-9481, paragraph 40, and Air Liquide Industries Belgium , cited in footnote 13, paragraph 46.

(54) – See, inter alia, Air Liquide Industries Belgium , cited in footnote 13, paragraph 28.

(55) – Although, as the Netherlands Government points out and as the order for reference itself indicates, the imposition of that requirement presupposes the existence of the protocol, and the collection of the surcharge is designed to make it possible to implement the latter, by enabling the distribution sector to pass on to consumers the resulting financial burdens. Moreover, Article 9 of the OEPS makes no express provision for an offsetting mechanism should SEP have already received, in whole or in part, the payments which the net operators (or the suppliers) are required to make under the protocol.

(56) – I should point out in passing that Article 97 of the 1998 Law on electricity in any event made implementation of the protocol a statutory requirement. Although not taken directly into consideration by the national court, that provision, which does not appear to have been notified to the Commission, could of itself involve an aid measure, the methods of financing of which are laid down by Article 9 of the OEPS.

(57) – It is not clear whether, if they had already implemented the protocol, the net operators and/or the suppliers would be exempted from the payments under Article 9(4) of the OEPS in respect of amounts corresponding to their participation in the non-recoverable costs or if they would in any event be required to pay, subject to subsequent reimbursement of the sums by SEP.

(58) – On the basis of Article 9(5) of the OEPS, that excess is, in any case, designed to cover the non-recoverable costs.

(59) – See, inter alia, Case C-372/97 Italy v Commission [2004] ECR I-3679, paragraph 44, and Air Liquide Industries Belgium , cited in footnote 13, paragraph 34.

(60) – See Case C-148/04 Unicredito Italiano [2005] ECR I-11137, paragraph 56, and the case-law cited therein, and Air Liquide Industries Belgium , cited in footnote 13, paragraph 35.

(61) – Based on the 1989 Law on electricity, see Almelo and Others , cited in footnote 12, paragraph 13 et seq.

(62) – See Air Liquide Industries Belgium , cited in footnote 13, paragraph 37.

(63) – See Case 290/83 Commission v France [1985] ECR 439, paragraphs 13 and 14; Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission [1988] ECR 219, paragraphs 32 to 38; and Case 57/86 Greece v Commission [1988] ECR 2855, paragraph 12. See also the Opinions of Advocate General VerLoren van Themaat in Joined Cases 213/81 to 215/81 Norddeutsches Vieh- und Fleischkontor Will and Others [1982] ECR 3583; of Advocate General Slynn in Greece v Commission ; and of Advocate General Darmon in Joined Cases C‑72/91 and C-73/91 Sloman Neptun [1993] ECR I-887.

(64) – Cited in paragraph 63.

(65) – That form of words had already been used in Case 82/77 van Tiggele [1978] ECR 25, paragraph 25.

(66) – On that occasion, the Court was asked directly by the Commission to reconsider its case-law, particularly in the light of recent developments in the Community legal order.

(67) – Case C-379/98 [2001] ECR I-2099.

(68) – Paragraphs 59 and 61.

(69) – Case C-345/02 [2004] ECR I-7139.

(70) – Paragraph 36.

(71) – Paragraph 37.

(72) – Citing the judgment in PreussenElektra , cited in footnote 67, for example, the Commission decided not to assess, on the basis of Article 87(1) EC, the imposition of a parafiscal charge (the Competitive Transition Charge) in the United Kingdom, which was levied on final consumers and paid directly to electricity suppliers (decision of 27 February 2002 in Case N 661/99).

(73) – Commission communication relating to the methodology for analysing State aid linked to stranded costs, adopted on 26 July 2001.

(74) – Reformulating the question in that way enabled the Court to limit the scope of the question for a preliminary ruling submitted by the national court – which encompassed an assessment of the whole of the system of measures to support the production of energy from renewable sources provided for by the legislation at issue – confining it solely to an analysis of the obligations imposed on the parties by the national court in accordance with that legislation.

(75) – Case C-83/98 P [2000] ECR I-3271, which confirmed the judgment of the Court of First Instance in Case T-67/94 Ladbroke Racing v Commission [1998] ECR II-1.

(76) – Case C-482/99 [2002] ECR I-4397 (‘ Stardust ’). See also the Opinion of Advocate General Jacobs.

(77) – Paragraph 50 of the judgment in France v Ladbroke Racing and Commission , cited in footnote 75, and paragraph 37 of the judgment in Stardust , cited in footnote 76. That principle had earlier been established by the Court of First Instance in Case T-358/94 Air France v Commission [1996] ECR II-2109, paragraph 67.

(78) – Paragraph 38.

(79) – Point 95.

(80) – The Court explained the criteria for determining attribution in its judgment in Stardust , cited in footnote 76.

(81) – See PreussenElektra , cited in footnote 67, paragraph 58, and the case-law cited therein.

(82) – Case 173/73 Italy v Commission [1974] ECR 709, paragraph 16; see also Steinike & Weinlig , cited in footnote 45.

(83) – See, to that effect, the Commission’s decision of 31 October 200 in procedure N/6/A/2001.

(84) – See also, to that effect, the Opinion of Advocate General Ruiz-Jarabo Colomer.

(85) – OJ 1980 L 195, p. 35.

(86) – The situation does not appear to be different for the other net operators, which were themselves in public ownership.

(87) – I would, moreover, point out that while it is true that, under Article 9(1) and (4) of the OEPS, Essent’s task was solely to collect the surcharge at issue and to pay it over to SEP, under Article 97 of the 1998 Law on electricity – which made the implementation of the protocol compulsory – it was, none the less, statutorily required to make to SEP the payments incumbent upon it in accordance with that protocol. The question submitted for a preliminary ruling by the national court does not mention the possibility that Article 97 of the 1998 Law on electricity comprises an aid measure within the meaning of Article 87(1) EC. It is not, therefore, necessary to embark upon such an analysis.