National legislation which, for the benefit of energy-intensive users in the productive sector, places a cap on the surcharge for financing support given to electricity produced from renewable sources, and which thereby prevents network operators and electricity suppliers from recovering part of the additional costs relating to electricity from energy produced from renewable sources from those undertakings, releases those undertakings from a charge which they should normally bear and therefore constitutes an advantage for the latter.

Only advantages which are granted directly or indirectly through State resources are to be regarded as aid within the meaning of Article 107(1) TFEU. National legislation establishing the legal framework for the promotion of electricity produced from renewable sources (EEG electricity) which provides, first, for a support regime in favour of EEG electricity producers by means of feed-in tariffs and market premiums, financed by the EEG surcharge on electricity suppliers recoverable from final consumers, levied and administered by network operators (NOs) and provides, second, for a special compensation scheme, placing a cap on the EEG surcharge that may be passed on by electricity suppliers to large energy consumers involves State resources within the meaning of that provision.

In the first place, the said surcharge, which consists in the difference, in proportion to the quantities sold, between the price obtained on the sale of electricity and the financial burden imposed by the legal obligation to pay for EEG electricity at tariffs fixed by statute which electricity suppliers are entitled to demand from final consumers, collected and administered by the NOs, is intended ultimately to cover the costs generated by the feed-in tariffs and market premium provided for in the national legislation in question by guaranteeing producers of EEG electricity a price for the electricity they produce that is above the market price. The said levy must therefore be regarded as resulting, principally, from implementation of a public policy, laid down by the State through legislation, to support producers of EEG electricity.

In the second place, the NOs are entrusted, by the legislation in question, with managing the system for supporting the production of EEG electricity. In that regard, they have conferred upon them a series of obligations and rights and are entrusted with tasks for the management and administration of that system that can be assimilated, from the point of view of their effects, to a State concession. The funds involved in the operation of that legislation are administered exclusively for purposes in the general interest, in accordance with detailed rules defined beforehand by the national legislature in question. Those funds, consisting in the additional costs passed on to the final consumers and paid by electricity suppliers to the NOs for the EEG electricity whose price exceeds that of electricity bought on the market, do not pass directly from the final consumers to the producers of EEG electricity, that is to say, between autonomous economic operators, but require the intervention of intermediaries, entrusted in particular with their collection and administration. Thus, those funds generated by the said levy and administered collectively by the NOs remain under the dominant influence of the public authorities.

In the third place, the resources at issue, generated by the said surcharge and intended to finance both the support scheme for EEG electricity and the compensation scheme, are obtained by means of charges ultimately imposed on private persons by the national legislation in question. That legislation empowers the NOs to impose a price supplement on suppliers, which may then pass it on to the final customers in accordance with the detailed rules, in particular regarding transparency of bills, defined by that legislation. In practice, those suppliers pass on the financial burden resulting from the EEG surcharge to final customers, in order to recover the costs brought about by the expenditure linked to that obligation. Since that burden represents 20% to 25% of the total amount of an average final consumer’s bill, its passing on to final consumers must be regarded as a consequence foreseen and organised by the national legislature in question.

It is thus indeed on account of that legislation that final electricity consumers are, de facto, required to pay that price supplement or additional charge. It is a charge that is unilaterally imposed by the State in the context of its policy to support producers of EEG electricity and can be assimilated, from the point of view of its effects, to a levy on electricity consumption in the Member State in question. Indeed, that charge is imposed by a public authority, for purposes in the general interest, namely protection of the climate and the environment by ensuring the sustainable development of energy supply and developing technologies for producing EEG electricity, and in accordance with the objective criterion of the quantity of electricity delivered by suppliers to their final customers. Thus, the amounts in question must be classified as funds which involve a State resource and can be assimilated to a tax.

That conclusion also applies to the advantage for energy-intensive users in that the compensation mechanism laid down by the national legislation in question constitutes an additional burden for the NOs. Any reduction in the amount of the EEG surcharge has precisely the effect of reducing the amounts collected by electricity suppliers and may be regarded as leading to losses in revenue for the NOs. However, those losses are subsequently recovered from other suppliers and, de facto, from other final customers, in order to offset the losses thus incurred. Thus, the average final consumer in the Member State concerned is involved, in a certain way, in the subsidising of the energy-intensive users for which the EEG surcharge is capped.

Finally, the fact that the State does not have actual access to the resources generated by the EEG surcharge, in the sense that they indeed do not pass through the State budget, does not affect the State’s dominant influence over the use of those resources and its ability to decide in advance, through the adoption of the legislation in question, which objectives are to be pursued and how those resources in their entirety are to be used.

(see paras 81, 92-96, 106, 108, 110-112, 118, 127, 128)