ENEA S.A. v Prezes Urzędu Regulacji Energetyki.
Date: 2017-09-13
17


It should be recalled at the outset that categorisation as ‘State aid’ within the meaning of Article 107(1) TFEU requires four conditions to be satisfied, namely, that there be intervention by the State or through State resources, that the intervention be liable to affect trade between Member States, that it confer a selective advantage on the beneficiary and that it distort or threaten to distort competition (judgments of 17 March 1993, Sloman Neptun, C‑72/91 and C‑73/91, EU:C:1993:97, paragraph 18, and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 15).
20


In that regard, it should be noted that, for it to be possible to classify advantages as ‘State aid’ within the meaning of Article 107(1) TFEU, they must be granted directly or indirectly through State resources and be attributable to the State (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 24, and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 16).
21


First, in order to assess whether a measure is attributable to the State, it is necessary to examine whether the public authorities were involved in the adoption of that measure (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 52, and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 17).
22


In that regard, it is sufficient to point out that the obligation at issue in the main proceedings, to supply electricity produced by cogeneration, was imposed by the Law on energy, and that measure must therefore be regarded as attributable to the State (see, to that effect, judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 18).
23


Secondly, the condition that there must be intervention by the State or through State resources is satisfied not only where aid is granted directly by the State but also where it is granted by public or private bodies established or designated by the State with a view to administering the aid (judgments of 22 March 1977, Steinike & Weinlig, 78/76, EU:C:1977:52, paragraph 21, and of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 58).
24


A measure consisting, inter alia, in an obligation to purchase energy may thus fall within the definition of ‘aid’ even though it does not involve a transfer of State resources (judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 19 and the case-law cited).
25


Article 107(1) TFEU covers all the financial means by which public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Even if the sums corresponding to the aid measure are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as ‘State resources’ (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 37; of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 70; and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 21).
26


Such circumstances must, however, be distinguished from those in which undertakings, mostly private undertakings, are not appointed by the State to manage a State resource, but are merely bound by an obligation to purchase using their own financial resources (judgments of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 74, and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 35).
27


It should be noted in that regard that the mechanism at issue in the main proceedings required electricity suppliers to sell a quota of the electricity produced by cogeneration accounting for at least 15% of their annual electricity sales to end users.
30


Consequently, given that those extra costs cannot be passed on entirely to end users and are not financed by a compulsory contribution imposed by the State or by a full offset mechanism (see, to that effect, judgments of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851), it must be concluded, as the Advocate General observed in point 86 of his Opinion, that the supply undertakings were not appointed by the State to manage a State resource, but were funding a purchase obligation imposed on them by having recourse to their own financial resources.
31


As regards the argument put forward by ENEA and the Commission that most of the undertakings bound by the purchase obligation were public undertakings governed by private law and therefore that obligation could be regarded as being financed through State resources, it should be noted that the resources of public undertakings may be regarded as State resources where the State is capable, by exercising its dominant influence over such undertakings, of directing the use of their resources in order to finance advantages to the benefit of other undertakings (see, to that effect, judgment of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 38).
32


As the Advocate General noted in points 91, 94 to 96 and 100 of his Opinion, the mere fact that the State held the majority of the capital in some of the undertakings subject to the purchase obligation does not lead to the conclusion that, in the main proceedings, the State exercised a dominant influence that enabled it to direct the use of the resources of those undertakings within the meaning of the case-law referred to in the preceding paragraph.
33


It appears that the purchase obligation applied equally to all electricity suppliers, regardless of whether their capital was predominantly held by the State or by private operators.
34


In addition, it is not clear from the information submitted to the Court, in particular from the information provided at the hearing, that ENEA’s conduct was dictated by instructions from public authorities. On the contrary, it was indicated that the decision to decline offers for the sale of electricity produced by cogeneration during the year 2006 was the result of wholly autonomous business decisions.
35


Moreover, contrary to the Commission’s submissions, the fact that the measure is attributable to the Member State concerned, as established in paragraph 22 above, does not mean that it may be inferred that that Member State exercises a dominant influence over an undertaking in which it is the majority shareholder, within the meaning of the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294, paragraphs 38 and 39). There is nothing in the State’s conduct as legislator to suggest that it exercised such influence in its capacity as majority shareholder in an undertaking.