Judgment of the General Court (Third Chamber) of 6 October 2021 –
AZ v Commission
(Case T‑196/19) (1)
(State aid – Aid scheme implemented by Germany for some large electricity consumers – Exemption from network charges in respect of the 2012-2013 period – Decision declaring the aid scheme incompatible with the internal market and unlawful, and ordering the recovery of the aid paid – Action for annulment – Period allowed for commencing proceedings – Admissibility – Concept of aid – State resources – Selectivity – Equal treatment – Legitimate expectations)
1. Action for annulment – Time limits – Point from which time starts to run – Date of publication or notification – Day on which a measure came to the knowledge of the applicant – Subsidiary matter – Measures required, pursuant to a regulatory provision, to be published in the Official Journal – Decision by the Commission to end a formal investigation procedure concerning State aid – Action brought by a party that is not the addressee of the decision – Time limit calculated from the date of publication
(Art. 263, sixth para., TFEU; Council Regulation 2015/1589, Arts 9 and 32(3))
(see paras 35-38, 40)
2. State aid – Definition – Aid from State resources – Concept of State resources – Exemption from network charges granted to certain large consumers of electricity – Compensation for the loss in network operators’ revenue by the introduction of a surcharge imposed on certain end users and on the suppliers of electricity – Included – Conditions – Surcharge which can be assimilated to a parafiscal levy – Public control over the funds obtained by means of the surcharge or over the administrators of those funds – Alternative conditions
(Art. 107(1) TFEU)
(see paras 56-74, 77)
3. State aid – Definition – Grant attributable to the State of an advantage by means of State resources – Aid granted in breach of national rules – Irrelevant
(Art. 107(1) TFEU)
(see paras 75, 76)
4. State aid – Definition – Aid from State resources – Concept of State resources – Exemption from network charges granted to certain large consumers of electricity – Compensation for the loss in network operators’ revenue by the introduction of a surcharge imposed on certain end users and on the suppliers of electricity – Surcharge passed on entirely, by a legal obligation, to those parties as ultimately liable for payment – Surcharge which can be assimilated to a parafiscal levy – Surcharge mechanism falling within the concept of State resources
(Art. 107(1) TFEU)
(see paras 78-98)
5. State aid – Definition – Aid from State resources – Concept of State resources – Exemption from network charges granted to certain large consumers of electricity – Compensation for the loss in network operators’ revenue by the introduction of a surcharge imposed on certain end users and on the suppliers of electricity – Public control of the entire mechanism of levying the surcharge and of allocating the funds generated – Public control over the funds obtained by means of the surcharge – Surcharge mechanism falling within the concept of State resources
(Art. 107(1) TFEU)
(see paras 99-114)
6. State aid – Definition – Selective nature of the measure – Measure conferring a tax advantage – Reference framework for determining the existence of an advantage – Material scope – Criteria – Identifying the ordinary or normal tax regime
(Art. 107(1) TFEU)
(see paras 122-133)
7. State aid – Recovery of unlawful aid – Aid granted in breach of the procedural rules of Article 108 TFEU – Legitimate expectations entertained by the recipients – None save in exceptional circumstances
(Art. 108(3) TFEU)
(see paras 148-155)
Operative part
The Court:
2. | | Orders AZ to bear its own costs and to pay those incurred by the European Commission; |
3. | | Orders the Federal Republic of Germany to bear its own costs. |