Asociación Española de la Industria Eléctrica (UNESA) and Others v Administración General del Estado.
Date: 2019-11-07
28


Article 191(2) TFEU provides that EU policy on the environment is to aim at a high level of protection and is to be based, inter alia, on the polluter pays principle. That provision thus does no more than define the general environmental objectives of the European Union, since Article 192 TFEU confers on the European Parliament and the Council of the European Union, acting in accordance with the ordinary legislative procedure, responsibility for deciding what action is to be taken in order to attain those objectives (judgment of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 39 and the case-law cited).
29


Consequently, since Article 191(2) TFEU, which establishes the polluter pays principle, is directed at action at EU level, that provision cannot be relied on as such by individuals in order to exclude the application of national legislation likely to operate in an area covered by environmental policy for which there is no EU legislation adopted on the basis of Article 192 TFEU that specifically covers the situation in question (see, to that effect, judgment of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 40 and the case-law cited).
31


In that regard, according to the Court’s settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it forms part (judgment of 16 May 2019, Conti 11. Container Schiffahrt, C‑689/17, EU:C:2019:420, paragraph 37 and the case-law cited).
37


It must, in the second place, be found that the context of which that provision forms part confirms the interpretation of its wording. It must be recalled that Directive 2000/60 is a framework directive adopted on the basis of Article 175(1) EC (now Article 192 TFEU). It establishes the common principles and an overall framework for action in relation to water protection, and coordinates, integrates and, in a longer perspective, develops the overall principles and structures for protection and sustainable use of water in the European Union. Those principles and that framework are to be developed subsequently by the Member States, through the adoption of individual measures (see, to that effect, judgment of 11 September 2014, Commission v Germany, C‑525/12, EU:C:2014:2202, paragraph 50 and the case-law cited).
39


In the third place, it must be noted that that interpretation is consistent with the objective pursued by Directive 2000/60. That directive does not seek to achieve complete harmonisation of the rules of the Member States concerning water (see, to that effect, judgment of 11 September 2014, Commission v Germany, C‑525/12, EU:C:2014:2202, paragraph 50, and of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 34).
41


Directive 2000/60 is based essentially on the principles of management per river basin; the setting of objectives per body of water; plans and programmes; an economic analysis of the detailed arrangements governing water pricing; the taking into account of the social, environmental and economic effects of cost recovery, and also the geographic and climatic conditions of the region(s) concerned (see judgment of 11 September 2014, Commission v Germany, C‑525/12, EU:C:2014:2202, paragraph 53).
42


It is clear from the provisions of that directive that measures for the recovery of the costs for water services are one of the instruments available to the Member States for qualitative management of water in order to achieve rational water use (see, to that effect, judgment of 11 September 2014, Commission v Germany, C‑525/12, EU:C:2014:2202, paragraph 55).
49


The Court points out that Article 3(1) enshrines, in the field of the internal market in electricity, the general principle of non-discrimination, which forms an integral part of the general principles of EU law. The Court has held that that principle is binding on Member States where the national situation at issue in the main proceedings falls within the scope of EU law (see, to that effect, judgments of 11 July 2006, Chacón Navas, C‑13/05, EU:C:2006:456, paragraph 56, and of 19 January 2010, Kücükdeveci, C‑555/07, EU:C:2010:21, paragraphs 21 and 23).
58


As regards the substantive response to the admissible parts of the third questions raised in all the joined cases, characterisation of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires, in accordance with the settled case-law of the Court, that all the following conditions be fulfilled. First, there must be an intervention by the State or through State resources. Secondly, that intervention must be liable to affect trade between Member States. Thirdly, it must confer a selective advantage on the recipient. Fourthly, it must distort or threaten to distort competition (see, in particular, judgment of 29 July 2019, Azienda Napoletana Mobilità, C‑659/17, EU:C:2019:633, paragraph 20).
60


It is clear from settled case-law that in order to assess the selective nature of the advantage granted to the recipients by a national measure, it is necessary to determine whether, under a particular legal regime, that national measure 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 accordingly suffer different treatment that can, in essence, be classified as ‘discriminatory’ (judgment of 26 April 2018, ANGED, C‑233/16, EU:C:2018:280, paragraph 38 and the case-law cited).
61


In order to characterise a tax as ‘selective’, the ordinary or ‘normal’ tax system applicable in the Member State concerned must first be identified and it must then be demonstrated that the tax being examined is a derogation from that system, in so far as it differentiates between operators who, in the light of the objective pursued by that ordinary tax system, are in a comparable factual and legal situation (judgment of 26 April 2018, ANGED, C‑233/16, EU:C:2018:280, paragraph 40 and the case-law cited).
62


In that regard, the determination of the reference framework has a particular importance in the case of tax measures, since the very existence of an advantage may be established only when compared with ‘normal’ taxation (see, to that effect, judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 56, and of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 55).
64


Since Article 107(1) TFEU defines State interventions on the basis of their effects, independently of the techniques used, it cannot, therefore, be excluded a priori that the criterion of imposing the tax on the use of inland waters for the production of hydroelectricity enables an advantage to be given, in practice, to ‘certain undertakings or the production of certain goods’ within the meaning of Article 107(1) TFEU by mitigating their tax burden in relation to those subject to that tax (see, to that effect, judgment of 26 April 2018, ANGED, C‑233/16, EU:C:2018:280, paragraphs 47 and 48 and the case-law cited).
68


While the referring court, which has sole jurisdiction to interpret national law, indicates that that tax — notwithstanding the wording of Article 112 bis of the Water Law and the provisions of Royal Decree 198/2015 implementing the tax — pursues, in the light of its essential characteristics and its structure, a purely economic objective, it should be observed that, in the absence of EU rules governing the matter, it falls within the tax competence of the Member States to designate bases of assessment and to spread the tax burden across the various factors of production and economic sectors (see, to that effect, judgment of 26 April 2018, ANGED, C‑233/16, EU:C:2018:280, paragraph 50 and the case-law cited).
70


As regards, in the second place, the examination of the selective nature of the measure at issue in the cases in the main proceedings, which might arise from the fact that the tax on the use of inland waters for the production of electricity is not payable by hydroelectricity producers operating within river basins encompassing a single autonomous community, it should be observed that, in accordance with the case-law of the Court, the legal reference framework for the purposes of assessing the selectivity of a measure must not necessarily be determined within the territory of the Member State concerned, but may be that of the territory within which a regional or local authority exercises the powers conferred on it by the constitution or by law. Such is the case when that entity enjoys a legal and factual status which makes it sufficiently autonomous in relation to the central government of a Member State, with the result that, by the measures it adopts, it is that body and not the central government which plays a fundamental role in the definition of the political and economic environment in which undertakings operate (see, to that effect, judgment of 26 April 2018, ANGED, C‑233/16, EU:C:2018:280, paragraph 41 and the case-law cited).
72


Similarly, it is apparent from the judgment of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraphs 61 and 62), that the relevant reference framework for examining the selective nature of a measure may be restricted to the legal regime adopted by an entity within the limits of its own powers.