Association Vent De Colère! Fédération nationale and Others v Ministre de l’Écologie, du Développement durable, des Transports et du Logement and Ministre de l’Économie, des Finances et de l’Industrie.
Date: 2013-12-19
15. It must be stated at the outset that, while categorisation as State aid within the meaning of Article 107(1) TFEU presupposes that four conditions are met, namely, that there is an intervention by the State or through State resources, that the intervention is liable to affect trade between Member States, that it confers a selective advantage on the beneficiary and that it distorts or threatens to distort competition (see, to that effect, Joined Cases C‑72/91 and C‑73/91 Sloman Neptun  [1993] ECR I‑887, paragraph 18, and Case C‑677/11 Doux Élevage and Coopérative agricole UKL-ARREE  [2013] ECR I‑0000, paragraph 25), the present question concerns the first of those conditions only.
16. For it to be possible to classify advantages as State aid, first, they must be granted directly or indirectly through State resources and, secondly, that grant must be attributable to the State (see, Case C‑482/99 France  v Commission  [2002] ECR I‑4397, paragraph 24, and Doux Élevage and Coopérative agricole UKL-ARREE , paragraph 27).
17. As regards, in the first place, the condition that the measure must be attributable to the State, it is necessary to examine whether the public authorities must be regarded as having been involved in the adoption of that measure (see, to that effect, France  v Commission , paragraph 52).
18. It is clear that the offset mechanism at issue in the main proceedings was established by Law No 2000-108 and must therefore be regarded as attributable to the State.
19. As regards, in the second place, the condition that the advantage must be granted directly or indirectly through State resources, it is to be recalled that measures not involving a transfer of State resources may fall within the concept of aid (see, to that effect, Case C‑387/92 Banco Exterior de España  [1994] ECR I‑877, paragraph 14, and Case C‑6/97 Italy  v Commission  [1999] ECR I‑2981, paragraph 16).
20. The concept of ‘intervention through State resources’ is intended to cover, in addition to advantages granted directly by the State, those granted through a public or private body appointed or established by that State to administer the aid (see, to that effect, inter alia, Case 78/76 Steinike & Weinlig  [1977] ECR 595, paragraph 21; Sloman Neptun , paragraph 19; and Doux Élevage and Coopérative agricole UKL-ARREE , paragraph 26).
21. The Court has also held that Article 107(1) TFEU covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Therefore, even if the sums corresponding to the measure in question 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 (see France  v Commission , paragraph 37; Essent Netwerk Noord and Others , paragraph 70; and Doux Élevage and Coopérative agricole UKL‑ARREE , paragraph 35).
25. The Court has held that funds financed through compulsory charges imposed by the legislation of the Member State, managed and apportioned in accordance with the provisions of that legislation, may be regarded as State resources within the meaning of Article 107(1) TFEU even if they are managed by entities separate from the public authorities (see, to that effect, Case 173/73 Italy  v Commission  [1974] ECR 709, paragraph 35).
26. Lastly, it was explained, at the hearing, that Law No 2000-108 had established a principle that the obligation to purchase would be covered in full by the French State, requiring the French State to discharge past debts and to cover in full the additional costs imposed on undertakings should the sum of the charges collected from final consumers of electricity be insufficient to cover those additional costs.
30. The Caisse des dépôts et consignations – a public body – under a mandate from the French State, provides administrative, financial and accounting management services for the Commission de régulation de l’énergie, the independent administrative authority responsible for ensuring the proper functioning of the market for electricity and gas in France. The Caisse des dépôts et consignations also determines late payments or defaults in payment by final consumers and reports them to that regulatory authority.
34. All those factors taken together serve to distinguish the present case from that which gave rise to the judgment in PreussenElektra , in which the Court held that an obligation imposed on private electricity supply undertakings to purchase electricity produced from renewable sources at fixed minimum prices could not be regarded as an intervention through State resources where it does not lead to any direct or indirect transfer of State resources to the undertakings producing that type of electricity (see, to that effect, PreussenElektra , paragraph 59).
35. As the Court has already had occasion to point out – in paragraph 74 of the judgment in Essent Netwerk Noord and Others – in the case which gave rise to the judgment in PreussenElektra , the private undertakings had not been appointed by the Member State concerned to manage a State resource, but were bound by an obligation to purchase by means of their own financial resources.
36. Consequently, the funds at issue [in PreussenElektra ] could not be considered a State resource since they were not at any time under public control and there was no mechanism, such as the one at issue in the main proceedings in the present case, established and regulated by the Member State, for offsetting the additional costs arising from that obligation to purchase and through which the State offered those private operators the certain prospect that the additional costs would be covered in full.
37. Accordingly, Article 107(1) TFEU must be interpreted as meaning that a mechanism for offsetting in full the additional costs imposed on undertakings because of an obligation to purchase wind-generated electricity at a price higher than the market price that is financed by all final consumers of electricity in the national territory, such as that resulting from Law No 2000-108, constitutes an intervention through State resources.
Limitation of the temporal effects of the judgment
39. It should be recalled in this connection that, according to settled case-law, the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, the Court gives to a rule of European Union law clarifies and defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied (see, inter alia, Case 24/86 Blaizot and Others  [1988] ECR 379, paragraph 27; Case C‑402/03 Skov and Bilka [2006] ECR I‑199, paragraph 50; and Case C‑92/11 RWE Vertrieb  [2013] ECR I‑0000, paragraph 58).
40. It is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Union legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely, that those concerned should have acted in good faith and that there should be a risk of serious difficulties (see, inter alia, Skov and Bilka , paragraph 51, and RWE Vertrieb , paragraph 59).
42. As regards, in the second place, the requirement that there should be a risk of serious difficulties, the Court has made it clear that the financial consequences which might result for a Member State from a preliminary ruling have never, in themselves, justified limiting the temporal effect of such a ruling (see to that effect, inter alia, Case C‑137/94 Richardson  [1995] ECR I‑3407, paragraph 37 and the case-law cited).
43. In those circumstances, there is nothing in the present case to warrant a derogation from the principle that a ruling on the interpretation of Union law takes effect from the date on which the rule interpreted came into force (see Joined Cases C‑197/94 and C‑252/94 Bautiaa and Société Française Maritime [1996] ECR I‑505, paragraph 49 and the case-law cited).