EN Official Journal of the European Union C 319/30

EFTA SURVEILLANCE AUTHORITY DECISION No 148/04/COL

of 30 June 2004

regarding environmental tax measures

(NORWAY)

(2004/C 319/08)

THE EFTA SURVEILLANCE AUTHORITY,

Having regard to the Agreement on the European Economic Area (1), in particular to Articles 61 to 63 thereof,

Having regard to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (2), in particular to Article 24 and Protocol 3 (3) thereof,

Having regard to the Procedural and Substantive Rules in the Field of State Aid (4), in particular Chapter 15 thereof (5),

Having regard to the Authority's decision to open the formal investigation procedure (6),

Having called on interested parties to submit their comments (7), pursuant to the provisions laid down in Chapter 5 of the Authority's State Aid Guidelines (8), and having regard to their comments,

Whereas:

I. FACTS

A. PROCEDURE

B. DESCRIPTION OF THE RELEVANT AID MEASURES

1. Exemptions from tax on electricity consumption

a) The exemption from the tax on electricity consumption for the manufacturing, the mining and the greenhouse growing industries

b) The exemption from the tax on electricity consumption for users in certain regions (municipalities)

2. Derogations under the CO2 tax regime

3. Partial abolishment of the SO2 tax

C. AUTHORITY'S DOUBTS EXPRESSED IN THE OPENING DECISION

1. Exemptions from the tax on electricity consumption

a) The exemption from the tax on electricity consumption for certain industries

b) The exemption from the tax on electricity consumption for users in certain regions (municipalities)

2. Derogations under the CO2 tax regime

a) The exemption of coal and coke used as raw materials or as reducing agents in industrial processes

b) The exemption of coal and coke used for energy purposes in the production of cement and leca

c) The reduced rate of the CO2 tax on mineral oils for the paper and pulp industry

3. Partial abolishment of the SO2 tax

4. Qualification as ‘new aid’

D. COMMENTS FROM THE NORWEGIAN GOVERNMENT ON THE OPENING DECISION

1. Exemptions from the tax on electricity consumption

a) The exemption from the tax on electricity consumption for certain industries

b) The exemption from the tax on electricity consumption for users in certain regions

2. Derogations under the CO2 tax regime

a) The exemption of coal and coke used as raw materials or as reducing agents in industrial processes

b) The exemption of coal and coke used for energy purposes in production of cement and leca

c) The reduced rate of the CO2 tax on mineral oils for the paper and pulp industry

3. Partial abolishment of the SO2 tax

4. Qualification as ‘new aid’

E. COMMENTS FROM THIRD PARTIES ON THE OPENING DECISION

1. Exemptions from the tax on electricity consumption

2. Derogations under the CO2 tax regime

a) The exemption of coal and coke used as raw materials or as reducing agents in industrial processes

b) The exemption of coal and coke used for energy purposes in production of cement and leca

c) The reduced rate of the CO2 tax on mineral oils for the paper and pulp industry

3. Partial abolishment of the SO2 tax

4. Qualification as ‘new aid’

II. APPRECIATION

A. SCOPE OF THE DECISION

B. STATE AID WITHIN THE MEANING OF ARTICLE 61(1) OF THE EEA AGREEMENT

1. Exemptions from tax on electricity consumption

a) The exemption from the tax on electricity consumption for the manufacturing and the mining industries

In this regard it should be recalled that in the Adria Wien-judgment, the Court of Justice held that:

‘…any justification for the grant of advantages to undertakings whose activity consists primarily in the production of goods is not to be found in the nature or general scheme of the taxation system…’ (44)

b) The exemption from the tax on electricity consumption for users in certain regions (municipalities)

2. Derogations under CO2 tax regime

a) The exemption of coal and coke used as raw materials or as reducing agents in industrial processes

b) The exemption of coal and coke used for energy purposes in production of cement and leca

c) The reduced rate of the CO2 tax on mineral oils for the paper and pulp industry

3. The abolishment of the SO2 tax on the use of coal and coke and on emissions from oil refineries

a) The abolishment of the SO2 tax on the use of coal and coke

b) The abolishment of the SO2 tax on emissions from oil refineries

C. COMPATIBILITY ASSESSMENT

Point 46.1 of the Environmental Guidelines sets out that when an EFTA State, for environmental reasons, introduces a new tax in a sector of activity or on products in respect of which no corresponding European Community tax harmonisation exists or the tax exceeds that provided for in Community legislation, exemption decisions covering a ten year period may be justified:

(a) when these exemptions are either conditional on the conclusion of agreements between the EFTA State concerned and the recipient firms whereby the firms undertake to achieve environmental protection objectives, or

(b) when the amount paid by the firms after the tax reduction remains higher than the Community minimum (where a Community tax exists – first indent) or constitutes a significant proportion of the national tax (where the tax does not correspond to a harmonised Community tax – second indent).

1. Exemptions from tax on electricity consumption

a) The exemption from the tax on electricity consumption for the manufacturing and the mining industries

b) The exemption from the tax on electricity consumption for users in certain regions

2. Derogations under the CO2 tax regime

a) The exemption of coal and coke used for energy purposes in production of cement and leca

b) The reduced rate of the CO2 tax on mineral oils for the paper and pulp industry

The CO2 tax on mineral oils leads to reduced use of fossil fuels and must be considered to have an appreciable positive impact in terms of environmental protection. The Authority notes that according to information submitted by the Norwegian authorities, the paper and pulp industry had reduced CO2 emissions by 60 000 tons by 1999. In addition, according to the Norwegian Government's report, ‘Norway's third national communication under the Framework Convention on Climate Change’ (June 2002 (61)):

‘… CO2 emissions from energy use in industry have been reduced considerably as a result of improved energy efficiency and changes in the energy mix…. In the industrial sector, electricity and bio energy have to a large extent replaced mineral oils as an energy source. This has been especially pronounced in the pulp and paper industry, which is increasingly using bark and other biological waste products as fuel.’

D. QUALIFICATION AS ‘NEW AID’ AS FROM 1 JANUARY 2002

a) The binding effect of the acceptance of appropriate measures

b) Consequences of the binding effect

E. RECOVERY

a) Legitimate expectations

b) The amount to be recovered

F. FINAL CONCLUSIONS

HAS ADOPTED THIS DECISION:

1. The following Norwegian measures constitute State aid within the meaning of Article 61(1) of the EEA Agreement: a) the exemption from the tax on electricity consumption for the manufacturing and the mining industries; b) the exemption from the tax on electricity consumption for undertakings located in Finnmark and seven municipalities in North Troms (Karlsøy, Kvænangen, Kåfjord, Lyngen, Nordreisa, Skjervøy og Storfjord); c) the exemption from the CO2 tax on coal and coke used for energy purposes in the cement and leca industry; d) the reduced CO2 tax rate on mineral oils for the paper and pulp industry.

2. The exemption from the CO2 tax for coal and coke used as raw materials and reducing agents does not constitute aid within the meaning of Article 61(1) of the EEA Agreement.

3. The abolishment of the SO2 tax on the use of coal and coke and the abolishment of the SO2 tax on emissions from oil refineries as from 1 January 2004 do not constitute State aid within the meaning of Article 61(1) of the EEA Agreement.

4. The measures referred to under point 1 of the present decision constitute new aid as from 1 January 2002.

5. The measure referred to under point 1 d) of the present decision is compatible with the functioning of the EEA Agreement until 31 December 2004.

6. The measures referred to under point 1 a), b) and c) of the present decision are incompatible with the functioning of the EEA Agreement.

7. As regards the incompatible aid referred to in point 1 c) of the present decision, recovery shall not be required.

8. The incompatible aid referred to under point 1 a) and b) of the present decision must be recovered from the aid recipients from 6 February 2003 onwards. Recovery shall be affected without delay and in accordance with the procedures of national law, provided that they allow the immediate and effective execution of the decision. The amount of recovery should equal a significant proportion of the national tax, and at least the minimum rate of EUR 0,5 per MWh laid down in the Energy Tax Directive (Council Directive 2003/96/EC). The aid to be recovered shall include interest from the date on which it was at the disposal of the beneficiaries until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant-equivalent of regional aid and shall be annually compounded.

9. The Norwegian Government is requested to inform the Authority within two months from receipt of this decision of the measures taken to comply with the present decision.

10. This Decision is addressed to the Kingdom of Norway.

11. This Decision is authentic in the English language.

Done at Brussels, 30 June 2004. For the EFTA Surveillance Authority Hannes HAFSTEIN President Einar M. BULL College Member

(1) Hereinafter referred to as the ‘EEA Agreement’.

(2) Hereinafter referred to as the ‘Surveillance and Court Agreement’.

(3) It has to be noted that amendments to Protocol 3 to the Surveillance and Court Agreement, following an agreement between EFTA States of 10 December 2001, amending Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, entered into force on 28 August 2003. These amendments incorporated ‘Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of [ex] Article 93 of the EC Treaty’ into Protocol 3.

(4) Guidelines on the application and interpretation of Articles 61 and 62 of the EEA Agreement and Article 1 of Protocol 3 to the Surveillance and Court Agreement, adopted and issued by the EFTA Surveillance Authority on 19 January 1994, published in OJ L 231, 3.9.1994 and EEA Supplement to the OJ No 32, 3.9.1994, last amended by the Authority's Decision No 62/04/COL of 31 March 2004, not yet published; hereinafter referred to as the ‘Authority's State Aid Guidelines’.

(5) Chapter 15 of the Authority's State Aid Guidelines on Aid for Environmental Protection, as adopted by the Authority's Decision No 152/01/COL of 23 May 2001 and published in the OJ L 237, 6.9.2001, p. 16 and EEA Supplement to the OJ No 6, 24.1.2002, hereinafter referred to as the ‘Environmental Guidelines’.

(6) EFTA Surveillance Authority Decision No 149/02/COL of 26 July 2002 regarding environmental tax measures (Norway), published in OJ L 31, 6.2.2003, p. 36 and EEA Supplement to the OJ No 8, 6.2.2003, p. 2.

(7) Notice informing EFTA States, EU Member States and interested parties of the opening decisions and inviting them to submit their comments thereto within two weeks from the publication of the notice, published in OJ C 105, 1.5.2003, p. 38 and EEA Supplement to the OJ No 22, 1.5.2003.

(8) In particular, point 5.3.2. of the Guidelines.

(9) See footnote 6.

(10) See footnote 7.

(11) The relevant provision makes reference to the statistical classification D, which corresponds to NACE D Chapters 15 to 37.

(12) The relevant provision makes reference to the statistical classification C, which corresponds to NACE C Chapter 10 to 14.

(13) There is no reference to any statistical classification; however, the sector would seem to fall within NACE A.

(14) Regulation of 23 December 1992 no. 1203, ‘Forskrift om avgiftsmessig avgrensning og praktisering av fritak og lettelser i avgift på elektrisk kraft for industrien m.v.’.

(15) Cf. Regulation of 23 December 1992 no 1203, ‘Forskrift om avgiftsmessig avgrensning og praktisering av fritak og lettelser i avgift på elektrisk kraft for industrien m.v.’, as amended by Regulation of 21 December 2000 no. 1344.

(16) Regulation of 11 December 2001 no. 1451, ‘Forskrift om særavgifter’.

(17) The applicable conversion rate for Norway was, as from 3 January 2002, NOK 8,0105 = EUR 1 and, as from 3 January 2003, NOK 7,2360 = EUR 1 (http://www.eftasurv.int/fieldsofwork/fieldstateaid/dbaFile791.html).

(18) Light Expanded Clay Aggregate.

(19) Associated with implementation of Council Directive 96/61/EC concerning integrated pollution prevention and control, the IPPC Directive, (OJ L 257, 10.10.1996, p. 26, as amended by Directive 2003/87/EC OJ L 275, 25.10.2003, p. 32), as incorporated into the EEA Agreement by Joint Committee Decision No 27/97 (OJ No L 242, 4.9.1997, p. 76 and EEA Supplement No 37, 4.9.1997, p. 100), The Act has to be operated in accordance with the Directive's requirements by 30 October 2007.

(20) According to the agreement, PIL declared, on behalf of the companies listed in an appendix (the sectors covered are: oil refineries, chemical/ceramic materials, cement, ferro alloys and aluminium), that they would develop technology and build cleansing plants that would reduce Norway's emission of SO2 by a minimum of 5 000 tonnes per year. Furthermore, PIL would make concrete proposals on how such an emission reduction could be carried out and propose how a total reduction of 7 000 tonnes could be achieved. PIL established a so-called ‘Process Industries' Environment Fund’ (‘the Fund’) with the purpose of contributing to the reduction of the companies' SO2 emissions. An ‘Implementation Agreement’ was concluded between the participating companies and the Fund on 18 December 2001 according to which the individual companies were obliged to make consecutive payments to the Fund calculated on the basis of the individual companies' SO2 emissions and rates fixed by the Fund. All initiatives entitled to support from the Fund should be completed prior to the end of 2009. The Implementation Agreement came into force on 1 January 2002 and will expire on 31 December 2009.

(21) On regional tax exemptions as State aid, see: Case E-6/98 The Government of Norway v EFTA Surveillance Authority [1999] Report of the EFTA Court, p. 74.

(22) Commission's Decision of 3 April 2002 regarding the dual-use exemption from the Climate Change Levy in the UK (State aid No C 18/2001 and C 19/2001), OJ L 229, 27.8.2002, p. 15.

(23) COM (1997) 30 final, OJ C 139, 6.5.1997, p. 14.

(24) In the meantime Council Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity (‘the Energy Tax Directive’) was adopted on 27 October 2003 (OJ L 283, 31.10.2003, p. 51), not incorporated into the EEA Agreement.

(25) This was, according to the Norwegian authorities, the case for the production of silicon metal and ferrosilicon.

(26) Council Directive No. 92/82 EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (OJ L 316, 31.10.1992, p. 19).

(27) The basic heating oil tax was introduced in 2000 with the purpose of discouraging a changeover from electricity to oil for heating purposes. This tax was levied on the same tax base as the CO2 tax on mineral oils. The paper and pulp industry has been fully exempted from the basic tax on heating oil since its introduction.

(28) Case C-143/99 Adria Wien Pipeline [2001] ECR I-8365, para. 49.

(29) See footnote 19 above.

(30) Directive 2003/87/EC of the European Parliament and the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ L275 25.10.2003, p. 32), not incorporated into the EEA Agreement.

(31) The Directive was later adopted as Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ L 283, 31.10.2003, p. 51).

(32) Reference is made to St.prp.nr. 1 (2002-2003).

(33) See footnote 31 above.

(34) Agreement between the Member States of the European Coal and Steel Community, of the one part, and the Kingdom of Norway, of the other part (OJ L 348, 27.12.1974, p. 17). This bilateral Free Trade Agreement remains in force after the expiry of the ECSC Treaty. The rights and obligations of this Agreement were transferred from the ECSC to the European Community as a result of the decision of the Conference of the Representatives of the Governments of the EC Member States from 19 July 2002. With the expiry of the ECSC Treaty in July 2002, the treatment in the Community of State aid to the ECSC steel sector was integrated into the general legal framework of the EC Treaty.

(35) With regard to the steel sector, see Protocol 26 to the EEA Agreement in conjunction with Article 5 of Protocol 14 to the EEA Agreement. With regard to the other products, see Articles 1 and 2(1) of Protocol 14 to the EEA Agreement, as well as Article 1 and its Annex, which lists the products referred to in Article 1, of the bilateral Free Trade Agreement.

(36) See point 17B.3.1. (1) of Chapter 17 B of the Authority's State Aid Guidelines on the application of State aid rules to measures relating to direct business taxation.

(37) See point 17B.3.1. (4) of Chapter 17B of the Authority's State Aid Guidelines and Case 173/73 Italy v Commission [1974] ECR 709, para. 15.

(38) See point 17B.3.1. (4) of Chapter 17B of the Authority's State Aid Guidelines.

(39) See Opinion of Advocate General Darmon in Joined Cases C-72 and 73/91 Firma Sloman Neptun Schiffahrts [1993] ECR I-887, para. 50.

(40) Case 173/73, cited above, para. 15.

(41) Case C-143/99, cited above, para. 55. See also Case C-75/97 Belgium v Commission [1999] ECR I-3671, para. 31, where the Court of Justice held that ‘the limitation of the increased reductions to certain sectors rendered those reduction measures selective, so that they fulfilled the condition of specificity.’

(42) Case C-143/99, cited above, para. 48; and Case C-75/97, cited above, para. 32.

(43) See State aid No N 449/2001 – Germany, Continuation of ecological tax reform after 31 March 2002; State aid No C 42/03 (ex NN 3/B/2001 and NN 4/B/2001) – Sweden, Energy Tax Scheme; State aid No NN 75/2002 – Finland, Differentiated energy tax rates on electricity.

(44) Case C-143/99, cited above, para. 49.

(45) State aid No C 33/2003 (ex NN 34/2003) – Austria, refund from Energy Taxes on Gas and Electricity in 2002 and 2003; State aid No N 449/2001 – Germany, Continuation of ecological tax reform after 31 March 2002; State aid No NN 3/A/2001 and NN 4/A/2001) – Sweden, Prolongation of CO2 tax scheme; State aid No. C 18/2001 (N 123/2000) – United Kingdom, the Climate Change Levy.

(46) The electricity tax applied e.g. in full to the construction industry (‘Bygge- og anleggsvirksomhet’) which falls under the statistical classification F, corresponding to NACE F.

(47) The Norwegian electricity tax could have led to situations where, for example, 75 % of the office space was used for administrative purposes with the result that all electricity consumption for the entire building was exempted from the electricity tax.

(48) State aid No N 416/1999 – Denmark, Electricity reform. See point 16 of the Commission's notice on the application of the State aid rules to measures related to direct business taxation (OJ C 384, 10.12.1998, p. 3) and the corresponding point 17B.3.1(4) of Chapter 17B of the Authority's State Aid Guidelines (OJ L 137, 08.06.2000, p. 22 and EEA Supplement No. 26, 08.06.2000, p. 12).

(49) See in particular Section 11 of the Danish Act, ‘Lov om afgift af electricitet’, available at http://147.29.40.90/DELFIN/HTML/A1998/0068929.htm.

(50) See footnote 22 above.

(51) State aid No NN 3A/2001 and NN 4A/2001 – Sweden, prolongation of CO2 tax scheme. See points 3.5 and 4.3 of the decision.

(52) Article 2(4)(b) of the Directive.

(53) Recital 22 of the Directive.

(54) Chapter 15 of the Authority's State Aid Guidelines, Introduction, paragraph 5.

(55) Under the Energy Tax Directive it is considered to be in the nature and the logic of an environmental tax system to exclude mineralogical processes from the framework (Article 2(4)(b) and recital 22). However, it cannot be in the nature and logic of the system to exclude some, but not all, mineralogical processes from an energy tax such as under the Norwegian tax system.

(56) By contrast cf. Case C-53/00 Ferring SA v Agence centrale des organismes de sécurité sociale (ACOSS) [2001] ECR I-9067, in which the Court of Justice found that a tax levied on direct sales of medicines to pharmacies, but not on wholesale distributors, equated to granting the wholesale distributors a selective tax exemption. In that case the two groups of distributors were in direct competition with each other, the tax in question had direct effects on the competitive relationship between them and a particular objective of the French authorities had been to create such effects.

(57) Cf. the opinion of Advocate General Tizzano in Case C-53/00, Ferring, cited above, para. 38.

(58) See footnote 22 and 51 above.

(59) That is to say 0,5 Euro per MWh, see Article 10 in conjunction with Annex I Table C of Council Directive 2003/96/EC (cited above).

(60) Chapter 25 of the Authority's State Aid Guidelines.

(61) http://odin.dep.no/archive/mdvedlegg/01/17/T1386032.pdf.

(62) OJ L 316, 31.10.1992, p. 19.

(63) Council Directive 2003/96/EC restructuring of the Community framework for the taxation of energy products and electricity, cited above.

(64) See in this context: Case C-242/00 Germany v Commission [2002] ECR I-5603, para. 28.

(65) Case C-242/00 Germany v Commission, cited above, para. 28. The binding effect of the acceptance of appropriate measures is now explicitly laid down in Article 19(1), second sentence, in Part II of Protocol 3 to the Surveillance and Court Agreement.

(66) See in this context, Case C-313/90 CIRFS [1993] ECR I-1125, para. 36.

(67) Cf. e.g. State Aid No C 42/2003 - Sweden; State Aid No E 10/2000 – Germany; and State Aid No C 37/2000 - Portugal.

(68) Case 313/90, CIRFS, cited above, para. 35.

(69) Cf., Para. 14 of the Report for the Hearing [1993] ECR-1151.

(70) Similarly, in the above mentioned opening-decision with regard to environmental taxes in Sweden, the Commission has taken the view that Sweden's acceptance of the appropriate measures in itself has had the effect of turning hitherto existing aid into new aid to the extent that the aid schemes do not comply with the new guidelines. Like in the present case, the Commission had not, prior to the adoption of the opening decision, carried out any individual assessment of the different Swedish' schemes, cf. State aid No C 42/2003.

(71) Case C-242/00, cited above, para. 28.

(72) Case C-36/00 Spain v Commission [2002] ECR I-3243, paras. 24, 25 and 32.

(73) See Article 14 in Part II of Protocol 3 to the Surveillance and Court Agreement and prior to the entry into force of the amendment to Protocol 3, on 28 August 2003, point 6.2.3 of Chapter 6 of the Authority's State Aid Guidelines.

(74) Cf. Case C-169/95 Spain v Commission [1997] ECR I-135, para. 51; Case C-24/95 Alcan Deutschland [1997] ECR I-1591, para. 25; and Case T-55/99 Confederación Española de Transporte de Mercancías (CETM) [2000] ECR II-3207, para. 121 to 131.

(75) Council Regulation (EC) No. 659/1999 of 22 March 1999 laying down detailed rules for the application of [ex] Article 93 of the EC Treaty.

(76) See footnote 6.

(77) In fact, it seems likely that most aid recipients obtained knowledge about Norway's acceptance of the appropriate measures and the doubts pertaining to the compatibility of the aid schemes either in May 2002, when the public was informed hereof in the Norwegian Government's Revised Budget for 2002, in October 2002 when the Government published its comments to the Authority's opening decision on the internet and, moreover, informed the public about the main content of the opening decision in the State Budget for 2003, or, at the latest, in December 2002 when the Government published a report about the consequences of the new Environmental Guidelines for the electricity tax.

(78) This is in line with the practice of the Commission (cf. State aid No C33/2003 – Austria) although the Commission prior to the adoption of the Energy Tax Directive only had considered a rate down to 20-25 per cent of the general tax rate as amounting to a significant proportion of the national tax (State aid No N 449/2001 – Germany; State aid No NN 3A/2001 and NN 4A/2001 – Sweden.

(79) See Article 14(2) in Part II of Protocol 3 to the Surveillance and Court Agreement and Chapter 34 of the State Aid Guidelines).