Essent Netwerk Noord BV supported by Nederlands Elektriciteit Administratiekantoor BV v Aluminium Delfzijl BV, and in the indemnification proceedings Aluminium Delfzijl BV v Staat der Nederlanden and in the indemnification proceedings Essent Netwerk Noord BV v Nederlands Elektriciteit Administratiekantoor BV and Saranne BV.
Date: 2008-07-17
40. As the Advocate General noted at point 29 of his Opinion, Articles 25 EC and 90 EC, which lay down respectively a prohibition on customs duties and charges having equivalent effect and on discriminatory internal taxation, complement each other in pursuing the objective of prohibiting any national fiscal measure that is liable to discriminate against products coming from or destined for other Member States by constituting a restriction on their free movement within the Community in normal conditions of competition (see, to that effect, Joined Cases C-393/04 and C-41/05 Air Liquide Industries Belgium  [2006] ECR I-5293, paragraph 55, and Case C‑221/06 Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten  [2007] ECR I-0000, paragraph 30).
41. Any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect. By contrast, pecuniary charges resulting from a general system of internal taxation applied systematically, in accordance with the same objective criteria, to categories of products irrespective of their origin or destination fall within Article 90 EC (See Air Liquide Industries Belgium , paragraphs 51 and 56).
42. A charge which is imposed on domestic and imported products according to the same criteria may nevertheless be prohibited by the Treaty if the revenue from such a charge is intended to support activities which specifically benefit the taxed domestic products. If the advantages which those products enjoy wholly offset the burden imposed on them, the effects of that charge are apparent only with regard to imported products and that charge constitutes a charge having equivalent effect. If, on the other hand, those advantages only partly offset the burden borne by domestic products, the charge in question constitutes discriminatory taxation for the purposes of Article 90, the collection of which is prohibited as regards the proportion used to offset the burden borne by the domestic products (see, to that effect, Joined Cases C-78/90 to C-83/90 Compagnie commerciale de l’Ouest and Others  [1992] ECR I-1847, paragraph 27).
43. In the case in the main proceedings, the price surcharge is imposed on transmitted electricity. In that regard, it must be borne in mind that electricity constitutes a product for the purposes of the provisions of the Treaty (Case C-393/92 Almelo  [1994] ECR I-1477, paragraph 28, and Case C-158/94 Commission  v Italy  [1997] ECR I-5789, paragraph 17).
44. Furthermore, as the chargeable event is the transmission of electricity, the Court has already held that a charge which is imposed not on a product as such, but on a necessary activity in connection with the product may fall within the scope of Articles 25 EC and 90 EC (see, to that effect, Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten , paragraph 43). In any event, it must be pointed out that the price surcharge is calculated on the basis of the number of kWh transmitted and not on the basis of the distance for which the electricity has to be transmitted or according to any other criterion directly connected with transmission and it is therefore imposed on the product itself.
46. Likewise, for the purposes of the application of Articles 25 EC and 90 EC, it is of little account that the financial charge is not levied by the State (Case 132/82 Commission  v Belgium  [1983] ECR 1649, paragraph 8). The fact that the price surcharge is levied by the net operators is, therefore, irrelevant.
58. It should be noted at the outset that a charge applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products alone, so that the advantages accruing from it offset the burden borne by those products, may constitute, having regard to the use to which the revenue from that charge is put, State aid incompatible with the common market, if the conditions for the application of Article 87 EC are met (see, to that effect, Case C-17/91 Lornoy and Others  [1992] ECR I-6523, paragraph 32, and Case C-72/92 Scharbatke  [1993] ECR I‑5509, paragraph 18).
59. A measure carried out by means of a discriminatory taxation and which is liable at the same time to be considered as forming part of an aid within the meaning of Article 87 EC, is governed both by the provisions of Articles 25 EC or 90 EC and by those applicable to State aid (see, to that effect, Case 73/79 Commission  v Italy  [1980] ECR 1533, paragraph 9, and Case 17/81 Pabst & Richarz  [1982] ECR 1331, paragraph 22).
60. While Articles 25 EC and 90 EC seek to preserve the free movement of goods and competition between domestic products and imported products, Article 87 EC has the objective, more generally, of preserving competition between undertakings by prohibiting any aid granted by a Member State which satisfies the conditions of the latter article.
63. According to settled case-law, the classification as ‘aid’ within the meaning of Article 87(1) of the Treaty requires that all the conditions set out in that provision are fulfilled (see Case C-142/87 Belgium  v Commission  [1990] ECR I-959, ‘Tubemeuse’ , paragraph 25; Case C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg  [2003] ECR I-7747, paragraph 74; and  Joined Cases C-341/06 P and C‑342/06 P Chronopost and La Poste  v Ufex and Others  [2008] ECR I‑0000, paragraph 125).
64. First, there must be intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition (see, inter alia, Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I-2941, paragraph 56, and Chronopost and La Poste  v Ufex and Others , paragraph 126).
66. Article 9 of the OEPS provides for the payment to the designated company, namely SEP, of NLG 400 million and for the payment of the excess of the charge received to the Minister, who must set that amount aside for the purpose of defraying the costs referred to in Article 7 of the OEPS – which will not, however, enter into force – namely the non-market-compatible costs associated with urban heating and the Demkolec coal gas plant. In that regard, it must be borne in mind that those amounts have their origin in the price surcharge imposed by the State on purchasers of electricity under Article 9 of the OEPS, a surcharge with regard to which it has been established, in paragraph 47 of this judgment, that it constitutes a charge. Those amounts thus have their origin in a State resource.
70. It is of little account that that designated company was at one and the same time the centralising body for the tax received, the manager of the monies collected and the recipient of part of those monies. The mechanisms provided for by the Law and, more specifically, the detailed accounts certified by an auditor, make it possible to distinguish those different roles and to monitor the use of the monies. It follows that as long as that designated company did not appropriate to itself the amount of NLG 400 million, at the time when it was freely able to do so, that amount remained under public control and therefore available to the national authorities, which is sufficient for it to be categorised as State resources (see, to that effect, Case C-482/99 France  v Commission  [2002] ECR I-4397, paragraph 37).
72. Those different circumstances distinguish the measure at issue in the main proceedings from that referred to in Case C-345/02 Pearle and Others [2004] ECR I-7139. The monies at issue in that case, which were used for an advertising campaign, had been collected by a professional body from its members who benefited from the campaign, by means of compulsory levies earmarked for the organisation of that campaign ( Pearle and Others , paragraph 36). They were, therefore, neither revenue for the State nor monies which remained under State control, by contrast to the amount received by SEP, which has its origin in a charge and can be used for no other purpose than that provided for by the Law.
73. Furthermore, in the case which gave rise to the judgment in Pearle and Others , although the monies were collected by a professional body, the advertising campaign was organised by a private association of opticians, had a purely commercial purpose and had nothing to do with a policy determined by the authorities ( Pearle and Others , paragraphs 37 and 38). By contrast, in the case in the main proceedings, the payment of the amount of NLG 400 million to the designated company had been the subject of a decision by the legislature.
74. Likewise, the measure in question differs from that referred to in Case C-379/98 PreussenElektra  [2001] ECR I-2099, in which the Court held, at paragraph 59, that the obligation imposed on private electricity supply undertakings to purchase electricity produced from renewable energy sources at fixed minimum prices did not involve any direct or indirect transfer of State resources to undertakings which produced that type of electricity. In the latter case, the undertakings had not been appointed by the State to manage a State resource, but were bound by an obligation to purchase by means of their own financial resources.
76. As regards the second condition, namely the possibility of affecting trade between Member States, it must be borne in mind that, according to the Court’s case-law, there is no threshold or percentage below which it may be considered that trade between Member States is not affected. The relatively small amount of an aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (see Tubemeuse , paragraph 43, and Altmark Trans and Regierungspräsidium Magdeburg , paragraph 81).
79. In that regard, it must be borne in mind that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (see Altmark Trans and Regierungspräsidium Magdeburg , paragraph 84; Joined Cases C-34/01 to C-38/01 Enirisorse  [2003] ECR I-14243, paragraph 30; and Servizi Ausiliari Dottori Commercialisti , paragraph 59).
80. By contrast, where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, such a measure is not caught by Article 87(1) EC ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 87; Enirisorse , paragraph 31; and Servizi Ausiliari Dottori Commercialisti , point 60).
81. However, for such compensation to escape classification as State aid in a particular case, and there was, moreover, no submission to that effect in the case in the main proceedings, a number of conditions must be satisfied ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 88; Enirisorse , paragraph 31; and Servizi Ausiliari Dottori Commercialisti , paragraph 61).
82. First, the recipient undertaking must actually have public service obligations to discharge, and the obligations must be clearly defined. ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 89; Enirisorse , paragraph 32; and Servizi Ausiliari Dottori Commercialisti , paragraph 62).
83. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings. ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 90; Enirisorse , paragraph 35; and Servizi Ausiliari Dottori Commercialisti , paragraph 64).
84. Third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 92, and Servizi Ausiliari Dottori Commercialisti , paragraph 66).
85. Fourth, the compensation must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the requisite means so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 93, and Servizi Ausiliari Dottori Commercialisti , point 67).
89. As regards the charge on the electricity transmitted, settled case-law provides that taxes do not fall within the scope of the provisions of the EC Treaty concerning State aid unless they constitute the method of financing an aid measure, so that they form an integral part of that measure (Case C-174/02 Streekgewest  [2005] ECR I-85, paragraph 25, and Joined Cases C-266/04 to C-270/04, C-276/04 and C-321/04 to C‑325/04 Distribution Casino France and Others  [2005] ECR I-9481, paragraph 34).
90. For a 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 tax is necessarily allocated for the financing of the aid and has a direct impact on the amount of that aid ( Streekgewest , paragraph 26, and Distribution Casino France and Others , paragraph 40).
93. Where a tax is hypothecated to an aid measure, the notification of the aid must also cover the method of financing (Joined Cases C-261/01 and C-262/01 van Calster and Others  [2003] ECR I-12249, paragraph 51, and Streekgewest , paragraph 26).
96. It is apparent from those considerations that Article 87 EC must be construed as meaning that the amounts paid to the designated company under Article 9 of the OEPS constitute ‘State aid’ for the purposes of that provision of the Treaty to the extent that they represent an economic advantage and not compensation for the services provided by the designated company in order to discharge public service obligations.
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