Achema AB and Others v Valstybinė kainų ir energetikos kontrolės komisija (VKEKK).
Date: 2019-05-15
46


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 that intervention be liable to affect trade between Member States, that it confer a selective advantage on the recipient 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; of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 15; and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 17).
47


It should also be borne in mind that, in order for it to be possible to categorise 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 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 16, and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 20 and the case-law cited).
48


In the first place, 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 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 17, and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 21).
50


In the second place, in order to determine whether the advantage has been granted directly or indirectly through State resources, it should be borne in mind that, according to the Court’s settled case-law, the prohibition laid down in Article 107(1) TFEU covers both aid granted directly by the State and aid granted through a public or private body appointed or established by that State to administer it (judgments of 22 March 1977, Steinike & Weinlig, 78/76, EU:C:1977:52, paragraph 21; of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 20; and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 23).
51


EU law cannot permit the rules on State aid to be circumvented merely through the creation of autonomous institutions charged with allocating aid (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 23, and of 9 November 2017, Commission v TV2/Danmark, C‑656/15 P, EU:C:2017:836, paragraph 45).
52


It is also apparent from the Court’s case-law that a measure consisting, inter alia, of an obligation to purchase energy may come within the concept of ‘aid’, even though it does not involve a transfer of State resources (see, to that effect, judgments of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 19, and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 24).
53


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. Even if sums corresponding to the aid measure in question are not permanently held by the Treasury, the fact that they constantly remain under public control, and are therefore available to the competent national authorities, is sufficient for them to be categorised as ‘State resources’ (judgments of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 21, and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 25 and the case-law cited).
54


The Court has, more specifically, held that funds financed through compulsory charges imposed by State legislation, and administered and apportioned in accordance with that legislation, may be regarded as State resources within the meaning of Article 107(1) TFEU even if they are administered by entities separate from the public authorities (judgments of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 35, and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 25).
55


The decisive factor in that regard is that such undertakings are appointed by the State to administer a State resource and are not merely bound by an obligation to purchase by means of their own financial resources (see, to that effect, judgments of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 74; of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraphs 30 and 35; and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraphs 26 and 30).
68


As the Court has already held, a mechanism for offsetting additional costs that is financed by all end consumers of electricity in the national territory and where the sums thus collected are apportioned and distributed to the recipient undertakings, under the legislation of a Member State, by a public entity must be regarded as constituting an intervention by the State or through State resources within the meaning of Article 107(1) TFEU (see, to that effect, judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 37, and order of 22 October 2014, Elcogás, C‑275/13, not published, EU:C:2014:2314, paragraph 30).
69


Furthermore, a situation such as that in the main proceedings differs from those in respect of which the Court has held that the obligation imposed on private electricity supply undertakings to purchase electricity generated from renewable energy sources at fixed minimum prices cannot be regarded as an intervention through State resources in so far as 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, judgments of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 59, and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 34).
70


In such cases, the Court noted that private undertakings had not been appointed by the Member State concerned to administer a State resource, but were bound by an obligation to purchase by means of their own financial resources (see, to that effect, 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).
74


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 which fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (judgments of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 79, and of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 65).
75


It must also be borne in mind that the case-law has acknowledged that an advantage directly granted to certain natural or legal persons may constitute an indirect advantage and, therefore, State aid for other natural or legal persons that are undertakings (see, to that effect, judgment of 13 June 2002, Netherlands v Commission, C‑382/99, EU:C:2002:363, paragraphs 38 and 60 to 66).
83


In the first place, 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 considered to constitute State aid (judgments of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 79, and of 27 June 2017, Congregación de Escuelas Pías Provincia Betania,C‑74/16, EU:C:2017:496, paragraph 65).
84


In that regard, the Court has ruled that, in order to assess that condition relating to the selectivity of the advantage, it is necessary to determine whether, under a particular legal regime, the national measure in question is such as to favour ‘certain undertakings or the production of certain goods’ over others, which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation and which are accordingly subject to different treatment that can, in essence, be classified as ‘discriminatory’ (judgments of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraphs 53 to 55, and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 54).
86


Article 107(1) TFEU does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects, and thus independently of the techniques used (judgments of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 87, and of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 48).
89


In the second place, in order to categorise a national measure as ‘State aid’, it is necessary, not to establish that the aid has an actual effect on trade between Member States, but only to examine whether the aid is liable to affect such trade (judgments of 26 October 2016, Orange v Commission, C‑211/15 P, EU:C:2016:798, paragraph 64, and of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 29).
90


However, the adverse effect on trade between Member States cannot be purely hypothetical or presumed. Thus, it is necessary to determine why the measure concerned is liable, by reason of its foreseeable effects, to have an impact on trade between Member States (judgment of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 30 and the case-law cited).
92


In addition, when aid granted by a Member State strengthens the position of one undertaking in comparison with other undertakings competing in intra-Community trade, the latter must be regarded as being affected by that aid (judgments of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraph 141, and of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 31).
94


Moreover, the fact that an economic sector, such as the energy sector, has been involved in a significant liberalisation process at EU level may serve to determine that the aid has a real or potential effect on trade between Member States (see, to that effect, judgments of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 51, and of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 34).
96


In so far as electricity is the subject of cross-border trade, the grant of PIS funds to the PIS providers mentioned in paragraph 82 above is liable to affect trade between those States (see, to that effect, judgment of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 35).
100


In that regard, the Court has stated that, where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, with the result that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of placing them in a more favourable competitive position than the undertakings competing with them, such a measure is not caught by Article 107(1) TFEU (judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 87, and of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 25).
102


The purpose of the verification of the conditions laid down in the Altmark case-law is to determine whether the measures at issue must be categorised as ‘State aid’, which is an issue that must be resolved before that which consists in examining, where necessary, whether incompatible aid is nevertheless necessary for the performance of the tasks assigned to the recipient of the measure at issue, under Article 106(2) TFEU (judgment of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 34).
103


By contrast, the conditions laid down in the Altmark case-law are no longer to be applied where it has been found that a measure must be categorised as ‘aid’, in particular in so far as the recipient undertaking is unable to pass the test of comparison with a typical undertaking, well run and adequately equipped so as to be able to meet the necessary public service requirements, and it is necessary to examine whether that aid can be justified under Article 106(2) TFEU (judgment of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 35).
104


In the first place, it should be borne in mind that the Member States are entitled, while complying with EU law, to define the scope and organisation of their services of general economic interest, and may take into account, in particular, objectives pertaining to their national policy and, in that respect, the Member States enjoy a wide discretion, which may be called into question only in the event of a manifest error (judgment of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraphs 69 and 70).
124


For the purpose of categorising a national measure as ‘State aid’, it is necessary, not to establish that competition is actually being distorted, but only to examine whether that aid is liable to distort competition (judgment of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 29 and the case-law cited).
125


However, actual distortion of competition cannot be purely hypothetical or presumed. Thus, it is necessary to determine why the measure concerned distorts or threatens to distort competition (judgment of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 30 and the case-law cited).
126


In that regard, it must be borne in mind that aid intended to release an undertaking from costs which it would normally have to bear in its day-to-day management or normal activities distorts the conditions of competition (judgment of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 33 and the case-law cited).