Judgment of the General Court (Third Chamber) of 6 October 2021 –

Wepa Hygieneprodukte and Others v Commission

(Case T‑238/19) ( 1 )

(State aid – Aid regime implemented by Germany for certain large electricity consumers – Exemption from network charges for the period 2012-2013 – Decision declaring the aid regime incompatible with the internal market and unlawful and ordering the recovery of the aid granted – Action for annulment – Time limit for bringing an action – Admissibility – Concept of ‘aid’ – State resources – Selectivity)

1. Action for annulment – Time limits – Point from which time starts to run – Date of publication or notification – Day on which a measure came to the knowledge of the applicant – Subsidiary matter – Measures required, pursuant to a regulatory provision, to be published in the Official Journal – Decision by the Commission to end a formal investigation procedure concerning State aid – Action brought by a party that is not the addressee of the decision – Time limit calculated from the date of publication (Art. 263, sixth para., TFEU; Council Regulation 2015/1589, Arts 9 and 32(3)) (see paras 35-38, 40)

2. State aid – Definition – Aid from State resources – Concept of State resources – Exemption from network charges granted to certain large consumers of electricity – Compensation for the loss in network operators’ revenue by the introduction of a surcharge imposed on certain end users and on the suppliers of electricity – Included – Conditions – Surcharge which can be assimilated to a parafiscal levy – Public control over the funds obtained by means of the surcharge or over the administrators of those funds – Alternative conditions (Art. 107(1) TFEU) (see paras 54-72, 76)

3. State aid – Definition – Grant attributable to the State of an advantage by means of State resources – Aid granted in breach of national rules – Irrelevant (Art. 107(1) TFEU) (see paras 73, 74)

4. State aid – Definition – Aid from State resources – Concept of State resources – Exemption from network charges granted to certain large consumers of electricity – Compensation for the loss in network operators’ revenue by the introduction of a surcharge imposed on certain end users and on the suppliers of electricity – Surcharge passed on entirely, by a legal obligation, to those parties as ultimately liable for payment – Surcharge which can be assimilated to a parafiscal levy – Surcharge mechanism falling within the concept of State resources (Art. 107(1) TFEU) (see paras 77-96)

5. State aid – Definition – Aid from State resources – Concept of State resources – Exemption from network charges granted to certain large consumers of electricity – Compensation for the loss in network operators’ revenue by the introduction of a surcharge imposed on certain end users and on the suppliers of electricity – Public control of the entire mechanism of levying the surcharge and of allocating the funds generated – Public control over the funds obtained by means of the surcharge – Surcharge mechanism falling within the concept of State resources (Art. 107(1) TFEU) (see paras 97-111)

6. State aid – Definition – Selective nature of the measure – Measure conferring a tax advantage – Reference framework for determining the existence of an advantage – Measure differentiating between operators in a comparable factual and legal situation in the light of the objective pursued by the ordinary tax system (Art. 107(1) TFEU) (see paras 118-127)

Operative part

The Court:

1. Dismisses the action;

2. Orders Wepa Hygieneprodukte GmbH, Wepa Leuna GmbH and Wepa Papierfabrik Sachsen GmbH to each bear their own costs and to pay those incurred by the European Commission;

3. Orders the Federal Republic of Germany to bear its own costs.

( 1 ) OJ C 213, 24.6.2019.