Federal Republic of Germany v European Commission.
Date: 2019-03-28
11


In the present case, after briefly recalling, in paragraphs 81 to 83 of the judgment under appeal, the relevant case-law of the Court of Justice concerning the concept of State resources, in particular the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294, paragraph 37), the General Court, first of all, summarised the decision at issue in paragraphs 84 to 90 of the judgment under appeal.
33


The mechanisms provided for by the EEG, which correspond to the assessment criteria developed by the Court of Justice in its judgment of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE (C‑677/11, EU:C:2013:348, paragraph 38), are dedicated to checking that the allocation system functions properly and that the intention of the legislature is observed, but do not create a significant opportunity for guidance or influence on the part of the State authorities, which permit the view that there is ‘exercise of State control’. Those authorities have only the option of adopting disciplinary measures or bringing administrative offence proceedings against private operators who infringe the EEG 2012 and do not have any authority allowing them access to the resources of those operators through the influencing of payments and financial flows.
48


It must be noted that, for it to be possible to classify advantages as ‘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 (judgment of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 20 and the case-law cited).
49


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 2 February 1988, Kwekerij van der Kooy and Others v Commission, 67/85, 68/85 and 70/85, EU:C:1988:38, paragraph 35, of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraphs 17 and 18, and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 21).
52


In the second place, it follows from the settled case-law of the Court of Justice that the prohibition laid down in Article 107(1) TFEU covers both aid granted directly by the State or through State resources and aid 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; of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 58, and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 23 and the case-law cited).
53


The distinction made in that provision between ‘aid granted by a Member State’ and aid granted ‘through State resources’ does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (judgments of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 58; and of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 26).
54


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).
55


It also follows from the case-law of the Court of Justice that it is not necessary to establish in every case that there has been a transfer of State resources for the advantage conferred on one or more undertakings to be capable of being regarded as State aid, within the meaning of Article 107(1) TFEU (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 36; and of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 34).
56


Thus, the Court of Justice has held that a measure consisting, inter alia, in an obligation to purchase energy may fall within the definition of ‘aid’ even though it does not involve a transfer of State resources (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).
57


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 concerned 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 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 25 and the case-law cited).
58


The Court of Justice has, more specifically, 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 (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).
59


The decisive factor, in that regard, consists of the fact that such entities are appointed by the State to manage 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).
60


It must, however, also be noted that, for the purposes of establishing whether the advantage given to the beneficiary is a burden on the State budget, it is necessary to determine whether there exists a sufficiently direct link between, on the one hand, that advantage and, on the other hand, a reduction of that budget, or a sufficiently concrete economic risk of burdens on that budget (see, to that effect, judgments of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 111, of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 109, of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 47, and of 16 April 2015, Trapeza Eurobank Ergasias, C‑690/13, EU:C:2015:235, paragraph 19).
67


It was on the basis of those findings that the General Court stated, in paragraph 96 of the judgment under appeal, with reference ‘by analogy’ to the judgment of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413, paragraph 66) that the amounts generated by the EEG surcharge were funds involving a State resource that can be assimilated to a levy; that statement was repeated in paragraph 127 of the judgment under appeal.
82


It is true that, as the General Court held in paragraph 125 of the judgment under appeal, and as stated in paragraph 58 of the present judgment, the Court of Justice has had occasion to hold 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 (judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 25).
84


The Court of Justice took care to point out, on the one hand, that the national legislation at issue in the case giving rise to that judgment 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 (judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 26). In doing so, the Court of Justice found that there was a link between the advantage in question and a reduction, at the very least potential, in the State budget.