AEM SpA (C-128/03) and AEM Torino SpA (C-129/03) v Autorità per l'energia elettrica e per il gas and Others.
Date: 2005-04-14
38. It should be noted that Article 87(1) EC defines State aid which is governed by the Treaty as 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. The concept of State 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 (see, in particular, Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg  v High Authority [1961] ECR 1, p. 19, Case C-256/97 DM Transport [1999] ECR I-3913, paragraph 19, and Case C-276/02 Spain  v Commission  [2004] ECR I-0000, paragraph 24).
39. However, the concept of aid does not encompass measures creating different treatment of undertakings in relation to charges where that difference is attributable to the nature and general scheme of the system of charges in question (see, in particular, Case C-351/98 Spain  v Commission  [2002] ECR I-8031, paragraph 42, and Case C-159/01 Netherlands v Commission  [2004] ECR I-0000, paragraph 42).
45. According to the case-law of the Court, the method by which an aid is financed may render the entire aid scheme incompatible with the common market. Therefore, the aid cannot be considered separately from the effects of its method of financing. On the contrary, consideration of an aid measure by the Commission must necessarily also take into account the method of financing the aid where that method forms an integral part of the measure (see Joined Cases C-261/01 and C-262/01 Van Calster and Others  [2003] ECR I-12249, paragraph 49).
46. However, for a special tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid measure under the relevant national rules, in the sense that the revenue from the special tax is necessarily allocated for the financing of the aid. It is only in the event of such hypothecation that the revenue from the special tax has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of the aid with the common market (see, to that effect, Case C-174/02 Streekgewest [2005] ECR I-0000, paragraph 26, and Case C-175/02 Pape  [2005] ECR I-0000, paragraph 15).
56. It should first be noted that Article 7(5) of Directive 96/92 refers to the system operator of the national electricity transmission system, and Article 8(2) of that directive refers to the order of dispatching of electricity generating installations. However, first, the measures at issue in the main proceedings are a ministerial decree and decisions adopted by a public authority, not by the system operator. Secondly, the national provisions referred to in the actions lodged by AEM and AEM Torino relate to the conditions for access to the system and not the order of dispatching of electricity generating installations.
57. However, it follows from Article 16 of Directive 96/92 that although, for the organisation of access to the system, Member States may choose between the negotiated access procedure and the single buyer procedure, both sets of procedure must be operated in accordance with objective, transparent and non-discriminatory criteria.
58. In any event, those provisions, like the general principle of non-discrimination of which they are specific applications, preclude different treatment of comparable situations and like treatment of different situations (see, as to the principle of non-discrimination, in particular Case C-442/00 Rodríguez Caballero [2002] ECR I-11915, paragraph 32).
59. As the Court has stated in paragraphs 42 and 43 of this judgment, the national measure at issue in the main proceedings imposes an increased charge for a transitional period for access to and use of the national electricity transmission system only on undertakings generating and distributing electricity from hydroelectric or geothermal installations to offset the advantage created for those undertakings, during the transitional period, by the altered legal framework following the liberalisation of the market in electricity as a result of the im plementation of Directive 96/92. Whilst such a measure treats differently situations which are not comparable, it is nevertheless a matter for the national court to satisfy itself that the increased charge does not go beyond what is necessary to offset that advantage.