CELEX: 62003CC0128
Language: en
Date: 2004-10-28 00:00:00
Title: Opinion of Advocate General Stix-Hackl delivered on 28 October 2004. # AEM SpA (C-128/03) and AEM Torino SpA (C-129/03) v Autorità per l'energia elettrica e per il gas and Others. # Reference for a preliminary ruling: Consiglio di Stato - Italy. # Internal market in electricity - Increased charge for access to and use of the national electricity transmission system - State aid - Directive 96/92/EC - Access to the system - Principle of non-discrimination. # Joined cases C-128/03 and C-129/03.

OPINION OF ADVOCATE GENERAL
      STIX-HACKL
      delivered on 28 October 2004 (1)
      
      Joined Cases C-128/03 and C-129/03
      AEM SpA (C-128/03)
      v
      Autorità per l'energia elettrica e per il gas(Electricity and Gas Authority)
      Ministero delle Attività Produttive
      and
      Ministero dell’Economia e delle Finanze,
      con la intervención de:
      ENEL Produzione SpA,
      and
      AEM Torino SpA (C-129/03)
      v
      Autorità per l'energia elettrica e per il gas(Electricity and Gas Authority)
      Ministero delle Attività Produttive
      and
      Ministero dell’Economia e delle Finanze,
      con la intervención de:
      ENEL Produzione SpA
      (Reference for a preliminary ruling from the Consiglio di Stato (Italy))
      (Internal market in electricity – Imposition of an increase in the amount payable for access to and use of the national transmission system for electricity
         – Offsetting of general revenue charges within the electricity system as the stated aim of the increased charge – Definition of general revenue charges – Overvaluation of electricity produced by hydroelectric and geothermo-electric generating plants – State aid – Article 87 EC– Recompense for undue cost advantage as preferential treatment? – Connection between financing and aid measures – Articles 7 and 8 of Directive 96/92/EC – Prohibition of discrimination in system access)
      I –  Introduction 
      1.     Just as in Case C-17/03 (2) the Court is again being asked to resolve transitional issues in connection with the transposition of Directive 96/92/EC (3) (hereinafter, ‘Directive 96/92’). 
      
      2.     The present case concerns the imposition on certain electricity producers of an increased charge for access to and use of
         the Italian electricity transmission system. According to the information provided by the national court making the reference
         this increased charge is intended to compensate for undue cost advantages in connection with the liberalisation of the national
         electricity market as, even following liberalisation of that market and after certain compensation machinery between electricity
         producers has been discontinued, the undertakings liable to pay the levy would be applying tariffs to distributors which failed
         to take account of the costs borne by them. 
      
      3.     The electricity producers liable to pay the increased charge consider the imposition of that increased charge to be discriminatory
         and open to objection under the law governing aid. They are also claiming that, contrary to the information given in the order
         for reference, the revenue from that increased charge would serve to finance State aid measures. 
      
      4.     In so far as cost advantages are actually created in connection with the liberalisation of electricity markets following the
         transposition of Directive 96/92, the principal question that then arises is whether or not Article 87 EC or the prohibition
         of discrimination in Articles 7 and 8 of Directive 96/92 preclude the offsetting of the said advantages by the imposition
         of an increase on certain charges. 
      
      II –  Legal background 
      A –    Community law 
      5.     Under Article 1 of Directive 96/92 ‘[t]his Directive establishes common rules for the generation, transmission and distribution
         of electricity. It lays down the rules relating to the organisation and functioning of the electricity sector, access to the
         market, the criteria and procedures applicable to calls for tender and the granting of authorisations and the operation of
         systems.’ 
      
      6.     Article 7(1) and (5) of Directive 96/92 provide: 
      ‘1. Member States shall designate or shall require undertakings which own transmission systems to designate, for a period
         of time to be determined by Member States having regard to considerations of efficiency and economic balance, a system operator
         to be responsible for operating, ensuring the maintenance of, and, if necessary, developing the transmission system in a given
         area and its interconnectors with other systems, in order to guarantee security of supply. 
      
      … 
      5. The system operator shall not discriminate between system users or classes of system users, particularly in favour of its
         subsidiaries or shareholders.’ 
      
      7.     Article 8(1) to (3) of Directive 96/92 provides: 
      ‘1. The transmission system operator shall be responsible for dispatching the generating installations in its area and for
         determining the use of interconnectors with other systems. 
      
      2. Without prejudice to the supply of electricity on the basis of contractual obligations, including those which derive from
         the tendering specifications, the dispatching of generating installations and the use of interconnectors shall be determined
         on the basis of criteria which may be approved by the Member State and which must be objective, published and applied in a
         non-discriminatory manner which ensures the proper functioning of the internal market in electricity. They shall take into
         account the economic precedence of electricity from available generating installations or interconnector transfers and the
         technical constraints on the system. 
      
      3. A Member State may require the system operator, when dispatching generating installations, to give priority to generating
         installations using renewable energy sources or waste or producing combined heat and power.’ 
      
      8.     Article 24(1) of Directive 96/92 reads as follows: 
      ‘Those Member States in which commitments or guarantees of operation given before the entry into force of this Directive may
         not be honoured on account of the provisions of this Directive may apply for a transitional regime which may be granted to
         them by the Commission, taking into account, amongst other things, the size of the system concerned, the level of interconnection
         of the system and the structure of its electricity industry. The Commission shall inform the Member States of those applications
         before it takes a decision, taking into account respect for confidentiality. This decision shall be published in the Official Journal of the European Communities.’ 
      
      9.     However, Article 24(2) of Directive 96/92 clearly states that applications for a transitional regime must be notified to the
         Commission no later than one year after the entry into force of the Directive. 
      
      B –    National law 
      10.   The order for reference essentially sets out the position under national law as follows. 
      11.   Under Article 3(10) of Decreto legislativo No 79 of 16 March 1999 (hereinafter ‘Legislative Decree No 79/99’) implementing
         Directive 96/92/EC concerning common rules for the internal market in electricity (4) a charge is payable to the network operator for access to and use of the national transmission system; it is determined by
         AEEG (Autorità per l’energia elettrica e per il gas, the Electricity and Gas Authority) irrespective of the geographical location
         of the production plants and final customers and on the basis of non-discriminatory criteria. 
      
      12.   Article 3(11) of Legislative Decree No 79/99 provides that the general revenue charges relating to the electricity system,
         including research expenditure and expenditure incurred in the dismantling of decommissioned nuclear power stations, the closure
         of the nuclear fuel cycle and related activities, are to be determined by a decree pronounced by the Ministro dell’industria,
         del commercio e dell’artigianato (Minister for Industry, Commerce and Craft Industries), in consultation with the Ministro
         del tesoro, del bilancio e della programmazione economica (Minister for the Treasury, the Budget and Economic Planning), and
         on a proposal by AEEG. It also provides that AEEG is to make provision for the adjustment of the amount of the consideration
         payable under Article 3(10). 
      
      13.   Article 2(1) of the decree adopted by the Ministro dell’industria, del commercio e dell’artigianato, in consultation with
         the Ministro del tesoro, del bilancio e della programmazione economica, and on a proposal by AEEG, of 26 January 2000 determining
         the general revenue charges relating to the electricity system (5) (hereinafter, ‘the Ministerial Decree’) essentially determines that ‘the general revenue charges incurred by the electricity
         system are defined as: 
      
      (a)      restitution …, under the criteria herein, of the non-recoverable portion, following implementation of Directive 96/92/EC,
         of the costs incurred in connection with electricity generation; 
      
      (b)      financial offset for the overvaluation, stemming from implementation of Directive 96/92/EC, of electrical energy produced
         by hydro-electrical and geothermal electricity generating plants which, as at 19 February 1997, were the property of or were
         available to producer and supply undertakings; 
      
      (c)      costs relating to the dismantling of decommissioned nuclear power stations, the closure of the nuclear fuel cycle and related
         activities; 
      
      (d)      costs of research and development in the interests of technological innovation of general interest to the electricity system;
         
      
      (e)      application of favourable rates for the supply of electricity provided for in Article 2(4) of AEEG Decision No 70/97 and by
         the decree of the Minister for Industry, Commerce and Craft Industries of 19 December 1995.’ 
      
      14.   In relation to Article 2(1)(b) it is provided in Article 3(3) of the Ministerial Decree under the heading ‘Charges from the
         implementation of Directive 96/92’: 
      
      ‘In order to offset if only in part the general revenue charges incurred by the electricity system the amount of overvaluation
         of electricity produced by hydro-electrical and geothermal electricity generating plants not benefiting from a contribution
         under the measures adopted by the inter-ministerial committee on prices of 12 July 1989 (No 15), 14 November 1990 (No 34)
         and 29 April 1992 (No 6), as subsequently amended and consolidated, shall be recovered for a period of seven years with effect
         from 1 January 2000 and subject to the detailed rules laid down in Article 5. The provisions hereof do not apply to plants
         with a nominal power not greater than 3 MW or to hydro-electric pumping stations.’ 
      
      15.   Finally, Article 5(9) of the Ministerial Decree lays down the detailed rules for determining the amount of the overvaluation
         to be recovered as follows: 
      
      ‘The amount of the overvaluation to be recovered in respect of the period mentioned in Article 3(3) shall be equal for the
         year 2000 to the approved variable unit cost of electricity produced by thermal electricity generating plants using commercial
         fossil fuels, as mentioned in Article 6(5) of AEEG Decision No 70/1997. In subsequent years for each plant and in each two-month
         period, it shall be equal to a proportion of the difference between the average weighted value of wholesale prices of electricity
         sold on the national market from time to time during that two-month period, using as weightings the quantities of electricity
         produced by the plant from time to time during the two-month period, and the average fixed unit costs of the plant as determined
         by AEEG on an annual basis up to 31 December of the preceding year. For the years 2001 and 2002 such proportion shall be equal
         to 75%; for the years 2003 and 2004 50% and for the years 2005 and 2006 25%. Subsequently to that date the proportion shall
         be equal to zero.’ 
      
      16.   Under Article 2(1) and (2) of AEEG Decision No 231/00 of 20 December 2000 concerning determination of the recovery of the
         overvaluation of electricity produced by hydro-electric and geothermal electricity generating plants for the year 2000 (6) electricity produced and supplied to the network by non-pumping hydro-electric and geothermal electricity generating plants
         having a nominal power greater than 3 MW – which, as at 19 February 1997, were the property on were available to undertakings
         which on that date were engaged in distribution and producing themselves, in whole or in part, the electricity distributed
         – was to attract an ‘increase in the amount of the consideration payable for use of the system to cover the power services
         mentioned in Article 8(1)(a) of Decision No 13/99’ in order to offset the overvaluation mentioned in Article 2(1)(b) of the
         Ministerial Decree of 26 January 2000. 
      
      17.   Under Article 2(1) and (2) of AEEG Decision No 232/00 of 20 December 2000 concerning determination of the recovery of the
         overvaluation of electricity produced by hydro-electric and geothermal electricity generating plants for the years 2001 to
         2006 (7) the electricity stated in Article 3(3) of the Ministerial Decree of 26 January 2000 produced and supplied to the network
         by non-pumping hydro-electric and geothermal electricity generating plants having a nominal power greater than 3 MW – which,
         as at 19 February 1997, were the property of or were available to undertakings which on that date were engaged in distribution
         and producing themselves, in whole or in part, the electricity distributed – attracts an ‘offset in respect of overvaluation
         as mentioned in Article 2(1)(b) of the Ministerial Decree of 26 January 2000’. Under Article 2(8) of Decision No 232/00 the
         aforementioned offset in respect of overvaluation is to take the form of an ‘increase in the amount payable for use of the
         system in order to cover the power services mentioned in Article 8(1)(a) of Decision No 13/99’. 
      
      18.   Under Article 3(1) of both Decisions the revenue from the increases in the amounts payable stipulated in Article 2 of Decision
         No 231/00 and Decision No 232/00 is to be transferred by the system operator to Cassa conguaglio per il settore elettrico
         (equalisation fund for the electricity sector, hereinafter ‘Cassa conguaglio’). Article 3(2) of both of the aforementioned
         Decisions provides that those transfers are to be credited to the Conto per la gestione della compensazione della maggiore
         valorizzazione dell’energia elettrica nella transizione (account for the management of the yield from the offset in regard
         to the overvaluation of electricity during the transitional period). Under Article 3(3) of both of the said Decisions any
         differences between the amount of the increases and payments made on the account itself are to be transferred to the Conto
         per nuovi impianti da fonti rinnovabili e assimilate (account for new plants using renewable and assimilated sources). 
      
      III –  Facts and procedure 
      19.   It is apparent from the orders requesting a preliminary ruling that AEM and AEM Torino issued proceedings in the Tribunale
         Amministrativo Regionale per la Lombardia (Regional Administrative Court for Lombardy) (Italy) challenging Decisions Nos 231/00
         and 232/00 and ‘the preparatory acts on which they were based’ including the Ministerial Decree of 26 January 2000. 
      
      20.   When those proceedings were dismissed AEM and AEM Torino lodged appeals with the Consiglio di Stato (Council of State) asking
         for the judgments under appeal to be set aside. 
      
      21.   The referring court, the Consiglio di Stato, states that the arguments put forward by AEM and AEM Torino can essentially be
         summarised as follows: 
      
      –       The increased charge in question comes entirely under the heading of aid for the functioning of certain undertakings or production
         financed by levies on supplies by undertakings in the sector, amounting to State aid within the meaning of Article 87(1) EC,
         which was granted in the present case in disregard of the procedure laid down in the Treaty itself. 
      
      –       The provision for a dissimilar charge for access to the transmission network in terms of a heavier imposition on certain undertakings
         constitutes an infringement of one of the fundamental principles of Directive 96/92 guaranteeing universal access without
         discrimination to the transmission network; 
      
      –       The imposition of a compensatory levy on the production of geothermal electricity in favour of the production of thermo-electric
         undertakings whose revenues are threatened by prices prevailing on the open competitive market constitutes a measure likely
         artificially to distort price formation on the open market; 
      
      –       In the final analysis a distortion of competition arises either as between undertakings operating on the same market (undertakings
         producing electricity) or as between undertakings characterised by the same type of production (production of electricity
         and geothermal energy) or, finally, in terms of commercial relations between the States, Italy being the only State providing
         for a compulsory levy on certain hydroelectric production in order to finance the charges attendant on implementation of the
         Directive. 
      
      22.   The Consiglio di Stato considers that an examination of the Decisions challenged shows that the increased charge at issue
         is based on the need to offset the undue advantages and to counter the competitive imbalances arising in the first period
         of liberalisation of the electricity market (from 2000 to 2006) attendant upon implementation of Directive 96/92. 
      
      The national court making the reference considers it necessary, in the first place, to clarify whether the rule in question
         constitutes State aid governed by the rules laid down in Article 87 et seq. EC. 
      
      It is inclined to answer that question in the negative. This is because the revenue from the proportionate increased charge
         for use of the network is not used to cross-subsidise certain undertakings or categories of undertakings operating in the
         market but seeks to offset the general revenue charges of the electricity system to the benefit of users (upon whom the general
         revenue charges would otherwise fall) and seeks to prevent the additional amounts received in respect of costs not borne by
         the producer and supply undertakings from penalising users in tariff terms. It is therefore a general measure of economic
         policy which does not aim to benefit certain undertakings or groups of undertakings but, on the contrary, pursues an interest
         of a general nature by preventing such financial returns from placing consumers at a disadvantage and distorting the equilibrium
         and functioning of the market. Indeed, notwithstanding certain indications in the preparatory acts, the contested decisions
         do not seek to allocate the revenue raised from the increased charge to a specific category of undertakings with a view to
         covering so-called stranded costs. Instead, in order to offset general revenue charges of the system this revenue is paid
         into an account for management of the yield from the offset in regard to the overvaluation of electricity during the transitional
         period (Article 4 of Decision No 53/00). Decisions Nos 231/00 and 232/00 further provide, albeit only as an eventuality, that
         amounts available in the account in excess of requirements are to be transferred to the account for new generating capacity
         from renewable or assimilated sources mentioned in Article 5 of Decision No 70/97. In the final analysis, the referring court
         does not consider that the requirement under the Ministerial Decree of 26 January 2000 may be classed as State aid since it
         merely provides for those sums to be paid into a single account intended to meet the general revenue charges of the system.
         Rather it might be the distinct and subsequent determination to direct those sums, henceforth publicly available, in favour
         of certain undertakings or production within the meaning of Article 87(1) EC which might amount to State aid. 
      
      23.   The referring court also considers it necessary to seise the Court of an interpretive question concerning the compatibility
         with Directive 96/92, in light of the general principles of the Treaty concerning competition and free movement in connection
         with liberalisation of the electricity market, of an administrative measure (imposed by the Ministerial Decree and implemented
         by Decisions Nos 231/00 and 232/00), laying down for a transitional period of six years (2000 to 2006), otherwise than under
         the rules provided for in Article 24 of the Directive, an increased charge for access to and use of the transmission network
         to the detriment of undertakings which benefited from liberalisation either in regard to supplies to the captive market or
         within the free market. 
      
      24.   In particular, the Court is asked to clarify, in light of the principles and provisions of Directive 96/92, whether that measure
         which appears to be discriminatory and to distort competition might be justified by the need, elucidated above and in the
         Decisions challenged, firstly, to preclude an advantage from accruing to the detriment of thermo-electrical undertakings which
         bear the cost of fuel, stemming from enjoyment of financial returns dependent on a tariff regime in the course of being superseded
         and, secondly, to prevent users bearing the burdens of costs not actually incurred by those undertakings from being penalised.
         
      
      25.   The Consiglio di Stato also considers it necessary to refer to the Court the issue of the compatibility of the aforesaid increased
         charge with Article 7 of Directive 96/92 and the 25th recital in the preamble to that Directive. On this question as well,
         the referring court tends to favour compatibility with Community law as the Community provision prohibits discrimination of
         users by the operator, whereas the present case concerns decisions by the Ministry and the AEEG which, though not affecting
         accessibility to the network, lay down a criterion for the transitional determination of a charge that is not prohibited by
         Community legislation. That charge is above all not discriminatory since it seeks to remedy imbalances which benefit certain
         types of user who receive financial returns as a result merely of an altered legislative framework. 
      
      26.   In the light of the foregoing the national court refers the following questions to the Court of Justice for a preliminary
         ruling in both sets of proceedings: 
      
      1.      Can an administrative measure which, on the terms and for the purposes stated in the reasoning, imposes on certain undertakings
         using the electricity transmission network an increased charge for access and use in order to finance general revenue charges
         of the electricity system be regarded as State aid for the purposes of Article 87 et seq. of the Treaty? 
      
      2.      Must the principles established in Directive 96/92 concerning the liberalisation of the internal electricity market and in
         particular Articles 7 and 8 thereof concerning operation of the electricity transmission network be interpreted as precluding
         the possibility for the Member States to adopt measures imposing for a transitional period on certain undertakings for access
         to and use of the transmission network an increased charge in order to offset the overvaluation of hydroelectric and geothermal
         electricity occasioned, as stated in the reasoning, by the altered legislative framework and to finance general revenue charges
         of the electricity system? 
      
      IV –  Legal appraisal 
      A –    Preliminary remarks 
      27.   In its first question the national court making the reference is essentially seeking to establish in which circumstances the
         imposition of a levy in the form of an increased charge (8) to offset undue cost advantages caused by liberalisation comes within the concept of State aid under Article 87 EC. 
      
      28.   In its second question the national court making the reference is essentially seeking to establish whether and to what extent
         the imposition of that levy is contrary to the prohibitions of discrimination for access to the transmission system under
         Articles 7 and 8 of Directive 96/92. 
      
      29.   Since the aid provisions in the Treaty are in principle to be applied alongside other Treaty provisions and since Directive
         96/92 is a liberalisation directive, both of the questions referred to the Court have to be considered in succession. It should
         first be noted in this connection that the referring court has expressly stated that the electricity producers are operating
         in the same market so that it would appear obvious to infer from any distortion of competition contrary to Article 87 EC that
         there is also discrimination within the meaning of Directive 96/92. 
      
      B –    Article 87 EC 
      1.      Preliminary remarks 
      30.   Article 87(1) EC defines State aid governed by the EC Treaty as any aid granted by a Member State or through State resources
         in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production
         of certain goods in so far as it affects trade between Member States. According to settled case-law, ‘the concept of aid within
         the meaning of that provision is wider than that of a subsidy because it embraces not only positive benefits, such as the
         subsidies themselves, but also measures which, in various forms, mitigate the normal burdens on the budget of an undertaking’. (9)
      
      31.   This general description of the concept of aid shows that even State measures in the field of direct (10) or indirect (11) taxation and social security contributions (12) can, in principle, come within the definition of aid. 
      
      32.   In answer to the first question referred to the Court it is now necessary to examine whether the factual criteria for State
         aid in Article 87(1) EC are met. 
      
      33.   First, the aid must be granted by a MemberState or through State resources. 
      34.   The present case concerns administrative measures which would undoubtedly appear to be attributable to the State. It must
         be ascertained, with regard to the use of State resources, that the imposition of an increased charge on certain electricity
         producers – in this case for access to and use of the network – initially leads to an increase in State revenue. (13) Where an increased charge is levied only on certain undertakings aid could be construed from the fact that other undertakings
         are not liable to pay the increased charge and the State is therefore relinquishing revenue, which should therefore be equated
         with the use of State resources. (14)
      
      35.   Second, the State aid must be liable to affect trade between Member States. Such an effect is probable, in any event, following
         the liberalisation of electricity markets and the creation of an internal market in electricity by virtue of Directive 96/92. (15)
      
      36.   Third, it must be possible to regard aid as an advantage favouring the recipient undertaking; and fourth, that advantage must
         distort or threaten to distort competition. 
      
      37.   As regards distortion of competition, it has already been established that objectively unjustified dissimilar treatment of
         undertakings that are in competition is liable, in principle, to provoke distortion of competition. It is necessary to establish,
         with regard to the affording of any advantage, whether there was such objectively unjustified dissimilar treatment in this
         case. 
      
      38.   The third condition mentioned above concerns the factual criteria for the selective affording of an advantage. It is necessary
         here to examine, in particular, the extent to which determination of the group liable to pay the increased charge involves
         objectively justified differentiation. It is also significant, in relation to the factual criterion of the affording of an
         advantage, whether the revenue from the increased charge is used to finance aid measures. 
      
      39.   It is therefore necessary to examine the extent to which the levying of the increased charge in question, in so far as it
         only relates to certain electricity producers, comes within the definition of aid and the extent to which the use of that
         revenue is significant. 
      
      2.      The affording of an advantage and the imposition of an increased charge as State aid 
      40.   Inasmuch as the increased charge in question exceeds the charge payable for access to and use of the network and inasmuch
         as it is used to fund the general revenue charges of the electricity system it is to be categorised as a parafiscal charge. (16)
      
      41.   According to settled case-law, the extent to which a fiscal rule affords selective advantages depends on whether a measure
         exempts undertakings from financial charges arising from the normal application of the general fiscal system ‘without there
         being any justification for this exemption on the basis of the nature or general scheme of this system’. (17)
      
      42.   The national ‘general’ fiscal system is therefore to be applied as the criterion, although it is then necessary to ascertain
         precisely what is a ‘general’ fiscal provision. This is undoubtedly an extremely tricky matter requiring comprehensive analysis
         of national fiscal provisions, at least in relation to direct taxation. (18)
      
      43.   An analysis in relation to increased charges of the type in question proves easier in that it is not the whole of the fiscal
         system concerned that has to be analysed but just the particular regime relating to the charge concerned. It must first be
         established whether and to what extent any parties favoured are in competition with the parties liable to pay the levy. Advocate
         General Tizzano states in this respect in his Opinion on the Ferring case (19) that ‘any new tax imposed on a given category of economic operators may be viewed in theory as an advantage conferred upon
         all operators who are not subject to that tax but are in more or less close competition with the first category’. Advocate
         General Tizzano rightly emphasises the importance of analysing the competitive relationships between all of the parties and
         therefore properly precludes the possibility of a response of general application in relation to the affording of an advantage
         so that ‘the solution must be sought on a case by case basis, with regard being had to the particular circumstances of the
         case and, above all, to the competitive relationship between the operators concerned, the reason for the tax and its effects.’ (20)
      
      44.   It should be recalled in relation to the case in the main proceedings that, as also expressly stated by the national court
         making the reference, all of the electricity producers are operating in the same market. Therefore, where the administrative
         measure at issue discriminates between electricity producers in the imposition of the increased charge the decisive factor
         is whether there are objective grounds to justify such discrimination. 
      
      45.   Recompense for undue cost advantages enjoyed by certain market participants could constitute objective justification. It is
         therefore necessary to examine whether and in what circumstances recompense for undue cost advantages by the imposition of
         an increased charge can be accepted as objective justification for the discrimination effected by that administrative measure.
         This would mean that no selective advantage has been afforded to the undertakings not liable to pay the increased charge as
         a result of imposing the increased charge on the other undertakings that are in competition with them. 
      
      46.   This question quite unmistakably resembles the problems faced in the cases of Ferring, (21)Altmark Trans (22)and Enirisorse. (23) Those cases were concerned with the question of whether and to what extent Member States can offset additional costs incurred
         as a result of being entrusted with services of general economic interest without then being subject to the provisions in
         the Treaty governing aid. In none of the three judgments did the Court of Justice completely rule out the recompense element.
         This would logically mean here – subject to the conditions to be more particularly described – that it would, in principle,
         be possible to allow recompense for certain undue cost advantages without that recompense option being considered a selective
         advantage within the meaning of the term aid. 
      
      47.   The national court making the reference does itself apparently proceed on the basis of the existence of undue cost advantages
         on the part of those liable to pay the increased charge and states in this context that the Italian electricity producers
         had not been in comparable situations following the transposition of Directive 96/92: the reason for this is a general tariff
         regime that is unaltered – at least in relation to captive customers – and that is applied by all electricity producers in
         their relationships with distribution companies and includes amongst other things a component to cover fuel costs. It immediately
         makes it clear, however, that not all electricity producers have to bear fuel costs – such as hydroelectric and geothermal
         electricity producers, for example. Prior to the liberalisation of the electricity market, therefore, there was compensation
         machinery in place ensuring that electricity producers which did not have to bear fuel costs passed on the revenue from the
         tariff components concerned to the Cassa conguaglio. Admittedly, during the course of market liberalisation that compensation
         machinery was abolished – although the tariff regime was not – so that this allegedly ultimately resulted in an undue cost
         advantage to electricity producers who do not bear fuel costs. According to the national court making the reference this tariff
         regime is also significant within the liberalised electricity market inasmuch as wholesale prices on the captive market constitute
         a point of reference for bilateral bargaining on the open market. 
      
      48.   This information provided by the national court shows that the liberalisation of the Italian electricity market led to undue
         cost advantages to certain electricity producers the extinction of which by the imposition of an increased charge for a limited
         period of time (24) on the undertakings advantaged without good cause – that is to say, the hydroelectric and geothermal electricity producers
         – in some circumstances should not be considered selective favouring of the other electricity producers not liable to pay
         the increased charge. 
      
      49.   In this instance, however, acknowledgement of the recompense approach as objective grounds for justification is conditional,
         first, on the group of parties liable to pay the increased charge corresponding to that group of undertakings which actually
         enjoyed undue costs advantages in the course of the liberalisation of the electricity market and, second, on the recompense
         afforded by levying the increased charge not exceeding what is required in order to extinguish the so-called overvaluation
         of hydroelectric and geo-thermal electricity. The fact that the increased charge in question was introduced as a transitional
         measure, with the amount declining as time went on, would certainly support its fulfilment of this second condition. It is
         nevertheless for the national court to arrive at such conclusions. 
      
      3.      The affording of an advantage and the financing of State aid measures with the revenue from the increased charge 
      50.   There has also been heated debate as to the extent to which the use of revenue from the increased charge in question is significant
         to an assessment of the contested administrative measure in the context of the law governing aid. 
      
      51.   The national court making the reference states that in the final analysis it ‘does not consider that the requirement under
         the Ministerial Decree of 26 January 2000 may be classed as State aid since it merely provides for those sums to be paid into
         an account intended to meet the general revenue charges of the system and that it may rather be the distinct and subsequent
         determination to direct those sums, henceforth publicly available, in favour of certain undertakings or production within
         the meaning of Article 87(1) EC which may amount to State aid’. This view is essentially shared by the Commission. 
      
      52.   Importance is to be attached here, first, to the settled case-law of the Court according to which ‘when an aid is financed
         by taxation of certain undertakings or certain producers, the Commission is required to consider … whether the method by which
         it is financed … in conjunction with the aid which it services … is compatible with the requirements of Articles [87 EC and
         88 EC]’. (25) The fundamental importance of the method of financing aid was also most recently reaffirmed in the Enirisorse judgment, which referred to earlier judgments: 
      
      ‘The concept of State aid includes not only certain parafiscal charges, depending on the use to which the revenue from those
         charges is put (see, inter alia Case C-17/91 Lornoy and Others [1992] ECR I-6523, paragraph 28), but also the collection of a contribution constituting a parafiscal charge (see Case C-72/92
         Scharbatke [1993] ECR I-5509, paragraph 20). 
      
      One of the Court’s recent decisions also makes it clear that where the method by which aid is financed, particularly by means
         of compulsory contributions, forms an integral part of the aid measure, consideration of the latter by the Commission must
         necessarily also take into account that method of financing the aid (Joined Cases C-261/01 and Case C-262/01 Van Calster and Others[2003] ECR I-0000, paragraph 49).’ (26)
      
      53.   Case-law has always stressed the requirement for such a connection. (27) However, the Court has developed the requirement to take the financing of an aid measure into account in the context of charges
         to be used for a specified purpose, where the charge discernibly serves to finance an aid measure. (28)
      
      54.   In the Van Calster judgment (29) the Court refers to ‘a charge specifically intended to finance aid’ (30) and later on, in relation to the method by which an aid is financed, to ‘the entire aid scheme that is intended to be financed
         thereby’. (31) The Court then states with regard to the obligation to notify that ‘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’ (emphasis inserted). (32)
      
      55.   The Enirisorse case (33) also concerned a charge the revenue from which was partly intended to finance an aid measure. The Court referred there to
         the Van Calster judgment in relation to the connection between the imposition of a charge and the use of the revenue. 
      
      56.   This all shows that the method of financing an aid measure is relevant in the context of the law governing aid where it forms
         an integral part of the planned measure. However, there is no such connection in the main proceedings. At the date on which
         the increased charge in question was imposed, at least, only the general revenue charges of the electricity system were to
         be financed. As the financing of general revenue charges cannot by definition constitute the selective affording of an advantage
         it was, however, initially uncertain whether aid measures would eventually be brought in here – to finance ‘stranded costs’
         or to promote renewable energy sources, for instance. Developments of this kind within the national legislative framework
         cannot, in the guise of the financing of aid measures, create an ex post facto link between the imposition of an increased
         charge and the use of the revenue from that increased charge, so that they are of no significance here. 
      
      57.   It is therefore found that in the present cases the use of the revenue from the increased charge in question has not been
         absolutely established. All that can be said is that the revenue from the increased charge in question, after being transferred
         by the system operator, is undoubtedly credited to a special account managed by the Cassa conguaglio. (34) The general revenue charges of the network, as defined in Article 2(1) of the Ministerial Decree of 26 January 2000, are
         to be financed from that account, with any amounts available in that account in excess of requirements being transferred to
         the account for new plants using renewable and assimilated sources mentioned in Article 5 of Decision No 70/97. 
      
      58.   Admittedly, the claimants are stressing what in their opinion is the unmistakable link between the revenue from the increased
         charge in question and the use to which it is put. In doing so, however, they are simply attempting to prove according to
         the case-law cited that the imposition of the increased charge in question also comes within the definition of aid inasmuch
         as the revenue from it is used to finance aid measures. 
      
      59.   This argument by the claimants is not convincing. 
      60.   Admittedly, it cannot be denied that there might be a certain link between the increased charge in question and the financing
         of any aid measures. However, there is no need here to decide whether the revenue from the increased charge in question is
         to be used to finance general revenue charges pursuant to the Ministerial Decree of 26 January 2000 (35) or to also finance possible aid measures, for instance to promote renewable energy sources. (36) Indeed, such enquiries into the actual use of the revenue from the increased charge in question are the responsibility of
         the national court. Notwithstanding the ultimate use of the revenue concerned, however, in my opinion there is no connection
         between the imposition process and the use of the funds that is sufficiently certain in the light of the case-law cited. 
      
      61.   It is therefore recommended that the first question referred to the Court should be answered as follows: Under Article 87(1)
         EC a rule such as that at issue in the main proceedings, which imposes on certain electricity producers an increased charge
         for access to and use of the electricity transmission network in order to finance general revenue charges of the electricity
         system, cannot be regarded as State aid in so far as 
      
      –       the group of electricity producers who are liable to pay an increased charge corresponds to that group of producers who have
         proceeded to enjoy undue cost advantages as a result of changes to the national legislative framework; 
      
      –       the increased charge is measured in such a way that the amount does not exceed what is required in order to extinguish the
         undue cost advantage received by the producers concerned. 
      
      C –    Directive 96/92 
      62.   It is apparent that the national court making the reference considers that the imposition of the increased charge in question
         raises questions of two kinds with regard to Directive 96/92. First, no recourse has been had, with regard to the national
         provision at issue, to the rule in Article 24 of the Directive regarding the financing of stranded costs; second, the increased
         charge could prove problematical inasmuch as it is associated with dissimilar treatment of electricity producers regarding
         access to the transmission network. 
      
      63.   Both questions will now be gone into in succession. 
      1.      The connection between ‘stranded costs’ and the present proceedings 
      64.   Under Article 24 of the Directive those Member States in which commitments or guarantees of operation given before the entry
         into force of the Directive may not be honoured on account of the provisions of the Directive ‘may apply for a transitional
         regime which may be granted to them by the Commission, taking into account, amongst other things, the size of the system concerned,
         the level of interconnection of the system and the structure of its electricity industry’. 
      
      65.   This provision enables so-called ‘stranded costs’ to be financed under the control of the Commission; these are costs resulting
         from investment that has not yet been recovered and which was made in the past in reliance upon long-term usage but can no
         longer be earned due to the opening-up of the market. 
      
      66.   The question of a link between the national rule at issue and the problem of ‘stranded costs’ arises because the financing
         of ‘stranded costs’ in Italy is still the subject of aid proceedings pending before the Commission (37) and bears a close regulatory connection with the provisions at issue regarding recompense for the overvaluation of electricity
         produced by hydroelectric and geothermo-electric plants. 
      
      67.   The Ministerial Decree of 26 January 2000 is concerned with the financing of the general revenue charges of the electricity
         system. Article 2(1) of the Ministerial Decree defines as general revenue charges both the financial offset for the overvaluation
         of hydroelectric and geothermal electricity and the restitution of the portion of the general revenue charges for electricity
         costs that cannot be recovered following implementation of Directive 96/92 – in other words ‘stranded costs’. The same legal
         basis was therefore taken in this Ministerial Decree for the financing of these two elements. 
      
      68.   The Italian Government nevertheless recognised (38) that recompense for the overvaluation of hydroelectric and geothermal electricity does not have any connection with ‘stranded
         costs’ inasmuch as the imposition of the increased charge in question is not based on Article 24 of Directive 96/92 and the
         issue of the use of the revenue from the increased charge represents a separate issue from the reason (39) for the provisions relating to the imposition of that increased charge. It is apparent that the Commission also takes this
         view inasmuch as it excluded the said recompense from the scope of its examination. Hence, the question of the compatibility
         of the increased charge in question, particularly with the provisions of the Directive relating to access to the transmission
         network, is raised without an interpretation of Article 24 of Directive 96/92 being required. 
      
      2.      Interpretation of Articles 7 and 8 of Directive 96/92 
      69.   Article 7 of the Directive contains general principles relating to transmission system operation. Its operation is to be entrusted
         to a system operator; Article 7(5) compels the latter to refrain from any discrimination between system users or classes of
         system users. Article 8 of Directive 96/92 essentially stipulates the criteria to be applied to dispatching the generating
         installations and determining the use of interconnectors with other systems. 
      
      70.   It should be stated, first, that the applicability of the prohibition of discrimination under Article 7(5) is dependent upon
         the answer to a question that has been referred to the Court for a preliminary ruling in Case C-17/03, (40) which is currently pending. In that case the Court is being asked to clarify, in particular, whether or not the prohibition
         of discrimination in Article 7(5) is confined to technical rules. The administrative measure regarding the imposition of the
         particular increased charge at issue here clearly does not constitute any such technical rule. In accordance with my recommended
         answer in Case C-17/03 it is my opinion that it should also be concluded here that Article 7(5) of Directive 96/92 is not
         confined to technical rules. 
      
      71.   The Commission also expresses doubts as to the applicability of Articles 7 and 8 of Directive 96/92 because the increased
         charge in question is ultimately not a charge that takes the form of remuneration – such as consideration for access to and
         use of the transmission network – but a charge for a specified purpose, (41) of which the system operator at least does not receive the benefit. (42)
      
      72.   Although these remarks are quite correct they do not lead to the conclusion that the charge in question should not be measured
         against the criterion of the prohibition of discrimination in Article 7(5) of Directive 96/92. As already shown in the context
         of the law on aid, (43) it must also be assumed, in relation to system access, that dissimilar treatment of electricity producers – consisting here
         of the selective imposition of an increased charge – is open to objection unless it is objectively justified. Such discrimination
         is liable per se to impede access to and use of the transmission network or, in any event, to make it less attractive, which
         is contrary to the clear open market objectives of Directive 96/92. 
      
      73.   Reference can therefore be made to the statements set out above (44) with regard to such objective justification. It must be concluded from those statements that, in so far as a change in the
         national legislative framework leads to an undue cost advantage to certain electricity producers, the extinction of that advantage
         should not, in principle, be considered an advantage of relevance to the law governing aid so that the dissimilar treatment
         can ultimately appear to be objectively justified in the circumstances stated there. There is no need to determine in this
         context whether the selective imposition of the increased charge in question constitutes dissimilar treatment of electricity
         producers that are not comparable (45) or the objectively justified dissimilar treatment of comparable electricity producers. 
      
      74.   It is therefore recommended that the second question referred to the Court should be answered as follows: Article 7(5) of
         Directive 96/92 does not preclude the Member States from adopting measures by which, in order to offset the overvaluation
         of hydroelectric and geothermal electricity occasioned by altered legislative framework, an increased charge is imposed on
         certain undertakings for a transitional period for access to and use of the transmission network the purpose of which is to
         finance general revenue charges of the electricity system. However, this is subject to the proviso that undue cost advantages
         have actually arisen over the transitional period. 
      
      V –  Conclusion 
      75.   In the light of the foregoing it is recommended that the questions referred to the Court should be answered as follows: 
      (1)      Under Article 87(1) EC a rule such as that at issue in the main proceedings, which imposes on certain electricity producers
         an increased charge for access to and use of the electricity transmission network in order to finance general revenue charges
         of the electricity system, cannot be regarded as State aid in so far as 
      
      –      the group of electricity producers who are liable to pay an increased charge corresponds to that group of producers who have
         proceeded to enjoy undue cost advantages as a result of changes to the national legislative framework; 
      
      –      the increased charge is measured in such a way that the amount does not exceed what is required in order to extinguish the
         undue cost advantage received by the producers concerned. 
      
      (2)      Article 7(5) of Directive 96/92 does not preclude the Member States from adopting measures by which, in order to offset the
         overvaluation of hydroelectric and geothermal electricity, an increased charge is imposed on certain undertakings for a transitional
         period for access to and use of the transmission network the purpose of which is to finance general revenue charges of the
         electricity system, provided that this overvaluation demonstrably corresponds to the undue cost advantages benefiting such
         undertakings as a result of an altered national legislative framework. 
      
      1 –	 Original language: German.
      
      2  –	See my Opinion that I am also delivering today in that case, which is still pending. 
      
      3  –	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 (OJ 1997 L 27, p. 20). 
      
      4  –	GURI No 75 of 31 March 1999. 
      
      5  –	GURI No 27 of 3 February 2000. 
      
      6  –	GURI, Supplemento ordinario, No 4 of 5 January 2001. 
      
      7  –	GURI, Supplemento ordinario, No 4 of 5 January 2001. 
      
      8  –	For the sake of simplicity the increased charge in question imposed on certain electricity producers for access to and
         use of the transmission system will hereinafter be referred to as the ‘increased charge’, although notionally a distinction
         must always be drawn between the (basic) ‘charge’ imposed on all electricity producers – which is not of relevance here –
         and the increase in that charge at issue here – which is confined to certain electricity producers. 
      
      9  –	See most recently the judgment in Case C-276/02 Spain v Commission [2004] ECR I-0000, paragraph 24, with numerous other authorities. 
      
      10  –	See, for example, Cases C-183/02 P, C-187/02 P and C-188/02 P Territorio Histórico de Alava – Diputación Foral de Alava and Others v Commission, which are still pending. 
      
      11  –	See, for example, the judgment in Case C-126/01 GEMO [2003] ECR I-0000. 
      
      12  –	See, for example, the judgment in Case C-5/01 Belgium v Commission [2002] ECR I-11991, although this case concerned the aid provisions in the ECSC Treaty.  That case concerned inter alia a
         reduction in the employer’s share of certain social security contributions. 
      
      13  –	It is irrelevant that the legal form of the system operator which, according to the regime in question, was entrusted
         with collecting the levy is an entity governed by private law because the revenue is transferred to the Cassa conguaglio (equalisation
         fund) the members of which are appointed by AEEG by approval of the Minister for State Finance pursuant to Article 6 of AEEG
         Decision No 194/00 (GURI of 3 November 2000).  The Commission quite rightly refers in this context to the judgment in Case
         C-379/98 PreussenElektra [2001] ECR I-2099, according to which ‘advantages which are granted directly by the State and those granted by a public or
         private body designated or established by the State’ come within the definition of aid. 
      
      14 –	See Jansen, Vorgaben des europäischen Beihilferechts für das nationale Steuerrecht, Baden-Baden 2003, p. 126 et seq.
      
      15  –	Such an adverse effect occurs where the recipient undertaking pursues a commercial activity which is the subject of trade
         between Member States.  See Jansen (cited in footnote 14), p. 135. 
      
      16  –	On the concept of parafiscal charges, see my Opinion of 7 November 2002 in Joined Cases C‑34/01 to C-38/01 Enirisorse [2003] ECR I-0000, paragraph 167. 
      
      17  –	See, amongst other authorities, the judgment in Case 173/73 Italy v Commission [1974] ECR 709, paragraph 15.  See also the judgment in Case C-143/99 Adria-Wien Pipeline [2001] ECR I‑365, paragraph 42. 
      
      18  –	In so far as an attempt has been made, in principle, to establish that, for instance, the ability to pay principle should
         be recognised as a general legal maxim (see Jansen, cited in footnote 14, p. 68 et seq.), it should be noted that this principle
         – as a product of the principle of equality – does not make an in-depth examination of any objective justification for discrimination
         unnecessary, so that the value of such an approach would be minor having regard to legal certainty. 
      
      19  –	Opinion in Case C-53/00 [2001] ECR I-9067, paragraph 36. 
      
      20  –	Loc. cit., paragraph 39. 
      
      21  –	 Cited in footnote 19. 
      
      22  –	Authoritative judgment in Case C-280/00 Altmark Trans [2003] ECR I-7747. 
      
      23  –	Judgment in Joined Cases C-34/01 to C-38/01 (cited in footnote 16). 
      
      24  –	It is apparent from the orders made by the national court requesting a preliminary ruling that the date of commencement
         of the increased charge imposed takes account of the undue cost advantage in question. As regards the length of time for which
         the charge was to be imposed – it was designed as a transitional measure – it should also be noted that the contested charge
         was abolished on 1 January 2002. 
      
      25  –	Principle expressed in the judgment in Case 47/69 France v Commission [1970] ECR 487, paragraphs 11/14. 
      
      26  –      Judgment cited in footnote 16 (paragraph 43 et seq.). 
      
      27  –	This is quite clear when one considers that aid measures are by definition financed from State funds, although this does
         not mean that all the revenue of the State concerned is to be considered an integral part of the measures. 
      
      28  –	See the judgment cited above in footnote 25. 
      
      29  –	Cited above, paragraph 52. 
      
      30  –	Loc. cit., paragraph 48. 
      
      31 –	Loc. cit., paragraph 49.
      
      32 –	Loc. cit., paragraph 51.
      
      33  –	Cited in footnote 16. 
      
      34  –	Account for the management of yield from the offset in regard to the overvaluation of electricity during the transitional
         period mentioned in Article 4 of Decision No 53/00. 
      
      35  –	It is not contested that this Ministerial Decree has been notified to the Commission, at least in relation to the financing
         of stranded costs and the recompense for the overvaluation of hydroelectric and geothermal electricity. 
      
      36  –	In this context the claimants submitted in the oral procedure that decisions pronounced by the regulatory authority AEEG,
         particularly Decision No 228/01, have altered the use of the revenue concerned so that it is primarily used to support renewable
         energy sources. 
      
      37  –	The Commission argues that the Italian authorities waived notification under Article 24 of Directive 96/92 and instead
         undertook to notify aid measures under Article 88(3) EC. 
      
      38  –	See, for instance, the communication from the Ministry for Production of 25 June 2002 cited by the national court making
         the reference. 
      
      39  –	That is to say, the ‘neutralisation’ of an undue cost advantage to the electricity producers concerned. 
      
      40  –	See my Opinion in that case cited in footnote 2. 
      
      41  –	That is to say, recompense for the overvaluation of hydroelectric and geothermal electricity, in other words the neutralisation
         of an undue cost advantage. 
      
      42  –	It should be added in this respect that although the charge in question is collected by the system operator the corresponding
         amounts are then forwarded to the equalisation fund for the electricity sector and credited there to an account for management
         of the offset in regard to the overvaluation of electricity during the transitional period. 
      
      43  –	See above, paragraph 44 et seq. 
      
      44  –	See above, paragraph 45 et seq. 
      
      45  –	The absence of comparability would follow from the existence of an undue cost advantage to certain producers or from their
         clearly lower production costs.