JUDGMENT OF THE GENERAL COURT (Third Chamber)
6 October 2021 (*)
(State aid – State aid scheme implemented by Germany in favour of certain large electricity consumers – Exemption from network charges in 2012 and 2013 – Decision declaring the aid scheme incompatible with the internal market and unlawful, and ordering the recovery of the aid granted – Action for annulment – Time limit for bringing proceedings – Admissibility – Concept of aid – State resources – Equal treatment – Legitimate expectations)
In Case T‑745/18,
Covestro Deutschland AG, established in Leverkusen (Germany), represented by M. Küper, J. Otter, C. Anger and M. Goldberg, lawyers,
applicant,
supported by
Federal Republic of Germany, represented by J. Möller, R. Kanitz, S. Heimerl and S. Costanzo, acting as Agents,
intervener,
v
European Commission, represented by T. Maxian Rusche and K. Herrmann, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of Commission Decision (EU) 2019/56 of 28 May 2018 on aid scheme SA.34045 (2013/c) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 StromNEV (OJ 2019 L 14, p. 1),
THE GENERAL COURT (Third Chamber),
composed of A.M. Collins, President, V. Kreuschitz and Z. Csehi (Rapporteur), Judges,
Registrar: B. Lefebvre, Administrator,
having regard to the written part of the procedure and further to the hearing on 29 October 2020,
gives the following
Judgment (1)
I. Background to the dispute
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B. Laws and regulations at issue
1. The system of network charges before the introduction of the measures at issue
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8 Until the entry into force of the StromNEV as amended by the EnWG 2011 (‘StromNEV 2011’), non-peak consumers and baseload consumers were subject to individual charges, calculated using the ‘physical path methodology’ devised by the BNetzA, which took account of the network costs generated by those consumers, with a minimum charge of at least 20% of the published general charges (‘the minimum charge’), which guaranteed remuneration for the operation of the network to which those consumers were connected in the event that the individual charges calculated using the physical path methodology were below or close to zero.
2. The measures at issue
9 Under the second and third sentences of Paragraph 19(2) of StromNEV 2011, as of 1 January 2011 (the date of the retrospective application of that provision), the system of individual charges for baseload consumers was abolished and replaced by a full exemption from the obligation to pay network charges (‘the exemption at issue’), granted by an authorisation from the competent regulatory authority, the BNetzA or the regulator of the Land concerned. That exemption was borne by the transmission system operators or the distribution system operators depending on the network level to which the beneficiaries were connected.
10 Under the sixth and seventh sentences of Paragraph 19(2) of StromNEV 2011, transmission system operators were required to compensate the distribution system operators for their losses in revenue resulting from the exemption at issue and had to set off among themselves the costs of the exemption by means of a financial set-off under Paragraph 9 of the Kraft-Wärme-Kopplungsgesetz (the Combined Heat and Power Generation Act) of 19 March 2002 (BGBl. 2002 I, p. 1092), in such a way that each of them bore the same financial burden in proportion to the electricity supplied to the end users connected to their respective network.
11 From 2012, the regulatory decision of the BNetzA adopted on 14 December 2011 (BK8-11-024, ‘the BNetzA decision of 2011’) introduced a financing mechanism. Under that mechanism, distribution system operators collected from end users or electricity suppliers a surcharge (‘the contested surcharge’) the amount of which was transferred to the transmission system operators to offset the losses in revenue resulting from the exemption at issue.
12 The amount of the surcharge was calculated each year in advance by the transmission system operators, using the methodology set out by the BNetzA. The amount for 2012, the first year the system operated, was set directly by the BNetzA.
13 Those provisions did not apply in respect of the costs of the exemption for 2011 and therefore each transmission system operator and distribution system operator had to bear the losses relating to the exemption for that year.
3. The system of network charges after the introduction of the measures at issue
14 During the administrative procedure leading up to the contested decision, the exemption at issue was first declared null and void by judicial decisions of the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany) of 8 May 2013 and of the Bundesgerichtshof (Federal Court of Justice, Germany) of 6 October 2015 and then repealed, with effect from 1 January 2014, by the StromNEV, as amended by the Verordnung zur Änderung von Verordnungen auf dem Gebiet des Energiewirtschaftsrechts (Regulation amending energy regulations) of 14 August 2013 (BGBl. 2013 I, p. 3250) (‘StromNEV 2013’). The latter regulation reintroduced, for the future, individual charges calculated using the physical path methodology, with the application, instead of the minimum charge, of flat-rate charges of 10%, 15% and 20% of the general charges, based on electricity consumption (7 000, 7 500 and 8 000 hours of annual network usage, respectively) (‘the flat-rate charges’).
15 StromNEV 2013 introduced a transitional scheme, in force with effect from 22 August 2013 and applicable, retrospectively, to baseload consumers which had not yet received the exemption at issue for the years 2012 and 2013 (‘the transitional scheme’). Instead of individual charges calculated using the physical path methodology and of the minimum charge, that scheme provided exclusively for the application of the flat-rate charges.
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D. The contested decision
19 On 28 May 2018, the Commission adopted Decision (EU) 2019/56 on aid scheme SA.34045 (2013/C) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 StromNEV [2011] (OJ 2019 L 14, p. 1; ‘the contested decision’), in which it concluded that during the period 1 January 2012 to 31 December 2013 the Federal Republic of Germany had unlawfully granted State aid in the form of the exemption at issue.
20 More specifically, the Commission held that the amount of State aid corresponded to the network costs caused by the exempted baseload consumers in 2012 and 2013 or, where those costs amounted to less than the minimum charge, to that minimum charge.
21 In addition, the Commission stated that the aid in question was incompatible with the internal market, since it did not meet the conditions of any of the derogations provided for in Article 107(2) and (3) TFEU and could not be considered compatible for any other reason.
22 The Commission therefore decided as follows:
– the exemption at issue constituted State aid within the meaning of Article 107(1) TFEU in so far as baseload consumers had been exempted from paying network charges corresponding to the network costs caused by them or, where those network costs amounted to less than the minimum charge, from paying that minimum charge;
– the aid in question had been put into effect by the Federal Republic of Germany in breach of Article 108(3) TFEU and was incompatible with the internal market;
– individual aid granted under the scheme in question did not constitute State aid if, at the time it was granted, it fulfilled the conditions laid down by a ‘de minimis’ aid regulation, adopted pursuant to Article 2 of Council Regulation (EC) No 994/98 of 7 May 1998 on the application of Articles [107] and [108 TFEU] to certain categories of horizontal State aid (OJ 1998 L 142, p. 1);
– the Federal Republic of Germany was required, first, to recover from the beneficiaries the incompatible aid granted under the scheme in question, including interest, and, second, to cancel all outstanding payments of aid under that scheme with effect from the date of the adoption of the contested decision.
II. Procedure and forms of order sought
23 By application lodged at the Court Registry on 20 December 2018, the applicant brought the present action.
24 By document lodged at the Court Registry on 24 April 2019, the Federal Republic of Germany sought leave to intervene in the present proceedings in support of the form of order sought by the applicant. By decision of 4 June 2019, the President of the Sixth Chamber of the General Court granted it leave to intervene. The Federal Republic of Germany lodged its statement in intervention and the main parties lodged their observations thereon within the prescribed period.
25 Upon a change in composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was transferred to the Third Chamber, to which the present case was then allocated.
26 On a proposal from the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral stage of the procedure and, in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put written questions to the parties, to which the latter replied within the time limit prescribed.
27 The parties presented oral argument and replied to the Court’s oral questions at the hearing on 29 October 2020.
28 At the hearing, the applicant withdrew the first plea and formal note to that effect was taken in the minutes of the hearing.
29 The applicant, supported by the Federal Republic of Germany, claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
30 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
III. Law
A. Admissibility of the action
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36 As regards the Commission’s allegation that the action is out of time, it must be observed that, under the sixth paragraph of Article 263 TFEU, an action for annulment must be brought within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter.
37 In the present case, it is not disputed that the action was lodged within a period of two months and ten days from the publication of the contested decision in the Official Journal, which took place on 16 January 2019.
38 As regards whether the applicant was aware of the contested decision before its publication, it must be observed that it follows from the wording of the sixth paragraph of Article 263 TFEU that the criterion of the date on which the measure came to the knowledge of the applicant as the starting point of the period for bringing an action is subsidiary to the criteria of publication or notification of the measure (judgments of 10 March 1998, Germany v Council, C‑122/95, EU:C:1998:94, paragraph 35, and of 17 May 2017, Portugal v Commission, C‑339/16 P, EU:C:2017:384, paragraph 39; see, also, judgment of 27 November 2003, Regione Siciliana v Commission, T‑190/00, EU:T:2003:316, paragraph 30 and the case-law cited) and, therefore, applies to measures which are subject to neither notification nor publication (judgment of 1 July 2009, ISD Polska and Others v Commission, T‑273/06 and T‑297/06, EU:T:2009:233, paragraph 55).
39 In the present case, publication of the contested decision was, admittedly, not a precondition for it to come into effect. However, Commission decisions closing a State aid investigation procedure under Article 108(2) TFEU are published in the Official Journal, in accordance with Article 32(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9). Therefore, according to settled case-law, the applicant could legitimately expect the contested decision to be published (see, to that effect, judgments of 15 September 1998, BP Chemicals v Commission, T‑11/95, EU:T:1998:199, paragraphs 48 to 51, and of 1 July 2009, ISD Polska and Others v Commission, T‑273/06 and T‑297/06, EU:T:2009:233, paragraph 57). The applicant was therefore entitled to take the date of publication in the Official Journal as the starting point of the period for bringing an action.
40 That conclusion is not called into question by the case-law relied on by the Commission.
41 First of all, in the judgment of 17 May 2017, Portugal v Commission (C‑339/16 P, EU:C:2017:384, paragraphs 34 to 40), the Court of Justice ruled that the starting point of the period for bringing an action for the applicant, the Portuguese Republic, was the notification of the contested decision to the latter, the addressee of that decision, whereas in the present case, the applicant was not the addressee of the contested decision, which was addressed to the Federal Republic of Germany, and received no notification of that decision within the meaning of Article 263 TFEU.
42 Next, the Opinion of Advocate General Campos Sánchez-Bordona in Georgsmarienhütte and Others (C‑135/16, EU:C:2018:120) concerned whether undertakings receiving State aid forming the subject matter of a Commission decision could have challenged that decision, which, according to the judgment of 9 March 1994, TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90), would have prevented them questioning the lawfulness of that decision before the national courts in an action brought against the measures taken by the national authorities to implement that decision. With regard to the calculation of the period within which the applicant undertakings could have brought an action before the EU legislature against the contested decision, the Advocate General concluded that, since publication of that decision was not a condition of its effectiveness, it being sufficient that the undertakings to which it was of direct and individual concern should have taken due cognisance of it, the starting point of the period for challenging that decision was the day on which cognisance was taken of it (Opinion of Advocate General Campos Sánchez-Bordona in Georgsmarienhütte and Others, C‑135/16, EU:C:2018:120, paragraph 63). However, that view was not adopted by the Court of Justice in the judgment that concluded the abovementioned case (judgment of 25 July 2018, Georgsmarienhütte and Others, C‑135/16, EU:C:2018:582) and in any event it has not been demonstrated that in the present case the applicant had taken ‘due cognisance’ of the contested decision, unlike in that case.
43 Lastly, in the order of 5 September 2019, Fryč v Commission (C‑230/19 P, not published, EU:C:2019:685), the Court of Justice found, in the context of an action for annulment of certain regulations, that as the measures in question had been published in the Official Journal and such publication had been a condition for the entry into force of those measures, the relevant date for the purposes of determining the starting point of the period for bringing an action under the sixth paragraph of Article 263 TFEU was that of publication. It must be stated that that finding does not support the Commission’s argument in the present case, since the measures in question are of a different nature.
44 The plea of inadmissibility put forward by the Commission in its defence must therefore be dismissed.
B. Substance
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1. Second plea: no State aid within the meaning of Article 107(1) TFEU
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(a) Second part of second plea: no State aid granted through State resources
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(1) Preliminary observations
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93 More recently, first, the Court of Justice, with regard to a support scheme for producers of electricity from renewable sources, funded by a surcharge on electricity suppliers to final customers in proportion to the quantities sold (the EEG surcharge), in the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), ruled out the use of State resources as follows:
– the amounts generated by the measure could not be treated in the same way as a levy, since the measure in question did not oblige the operators concerned to pass on the costs to the final customers (paragraphs 65 to 71 of that judgment);
– there was no dominant influence of the public authorities over the management of the resources in question, in the absence of power to dispose of the funds, the fact that the funds were allocated exclusively to the financing of the scheme in question did not mean that the State was entitled to dispose of them, that is to say to decide to allocate those resources differently (paragraphs 74 to 76 of that judgment), and, in the absence of public control over the bodies responsible for managing those funds, mere monitoring of the proper implementation of the scheme in question was not sufficient in that regard (paragraphs 77 to 85 of that judgment).
94 Second, the Court of Justice, with regard to a support scheme for electricity producers providing public interest services, which was funded in particular by a surcharge on final electricity customers based on the amount of electricity consumed, acknowledged in the judgment of 15 May 2019, Achema and Others (C‑706/17, EU:C:2019:407) that the State resources test was met, in view in particular of the following circumstances:
– the contribution was compulsory for end users and producers of electricity consuming it for their own needs (paragraph 57 of that judgment) and for the network operators responsible for collecting it (paragraph 64 of that judgment); the amount of the contribution was set by a public body (paragraph 58 of that judgment);
– distribution of the funds was managed by an administrator controlled directly by the State, appointed to administer the contribution, with no discretion as to the determination and intended use of those funds (paragraphs 59 and 66 of that judgment).
95 In essence, the case-law of the Court of Justice cited in paragraphs 93 and 94 above relies on two main factors in order to assess whether resources are State resources: first, the existence of a compulsory levy on consumers or customers, normally classified as a ‘charge’, or more specifically as a ‘parafiscal charge’, and, secondly, State control over the administration of the scheme, in particular through State control over the funds or the (third-party) administrators of those funds. These are, in essence, two factors which together form an alternative.
96 The fact that the two abovementioned conditions are factors forming an alternative is confirmed by paragraph 72 of the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), in which the Court, having ruled out the existence of a ‘special levy’, considered that it was therefore necessary to determine whether the other two factors mentioned (that is to say, State control over the funds or over the network operators) allowed it nonetheless to conclude that the funds generated by the EEG surcharge constituted State resources. Furthermore, in the judgment of 15 May 2019, Achema and Others (C‑706/17, EU:C:2019:407), first, the Court of Justice held that the funds compulsorily collected by the electricity network operators from economic operators and end users could be regarded as State resources (paragraphs 64 and 65 of that judgment) and then it held also, and hence for the sake of completeness, that those funds, apportioned among the beneficiaries of the scheme by a body under public control, which had no discretion as to the determination and intended use of those funds, must be regarded as remaining under public control (paragraphs 66 and 67 of that judgment).
97 As Advocate General Jacobs pointed out in his Opinion in PreussenElektra (C‑379/98, EU:C:2000:585, point 165), the common denominator of the cases in which the Court of Justice had recognised the existence of State resources is that in one way or another the State exercised control over the resources in question. Such control may be exercised inter alia through parafiscal charges, a mechanism by which, according to the Advocate General, the money becomes the property of the State before it is redistributed to the aided undertakings. Thus, according to that interpretation, the existence of a parafiscal charge is one of the situations in which State control exists over the resources used.
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100 In recital 136 of the contested decision, which summarises recitals 49 to 84 of the Opening Decision, the Commission recalls that in the latter decision it found that the exemption at issue had been financed through State resources on the basis of the following evidence:
– the exemption at issue corresponded to a policy of the State;
– the financial losses resulting from the exemption at issue were fully compensated through the surcharge at issue, which was borne by the network users and was not payable by the network operators;
– the transmission system operators had been entrusted with the management of the financial flows resulting from the exemption and from the surcharge at issue and were not free to use the proceeds of the surcharge at issue as they wished;
– the surcharge at issue did not correspond to payment for a service or a good.
101 In recital 137 of the contested decision, the Commission rejects the Federal Republic of Germany’s argument that the resources that financed the exemption at issue did not transit through the State budget. According to the Commission, the concept of State resources also applies if the aid is financed through private means, which must be paid on the basis of an obligation imposed by the State and are managed and apportioned in accordance with the provisions of the legislation concerned, despite the fact that those resources are not administered by the public authorities but by private entities designated by the State that are separate from the public authorities.
102 In recitals 138 and 139 of the contested decision, the Commission points out that the losses in revenue resulting from the exemption at issue in 2012 and 2013 were passed on entirely to end users by a full offset mechanism financed by a surcharge imposed on them by the State.
103 In recitals 140 to 147 of the contested decision, the Commission states that:
– the surcharge at issue constituted a parafiscal charge imposed by the State on end users, and not a general network charge;
– the network operators were appointed to levy and administer the surcharge at issue, and required to collect that surcharge, and could use the proceeds of the surcharge for the sole purpose of compensating for the losses in revenue stemming from the exemption at issue;
– the surcharge gave a guarantee that the losses in revenue for those operators resulting from the exemption at issue would be fully compensated and the amount of the surcharge was calculated on the basis of the exemption.
104 In essence, the Commission’s examination is based on the following two facts: first, the surcharge at issue constitutes a ‘parafiscal charge’, since it was a compulsory charge imposed by the State on ‘end users’, and, second, the network operators are appointed to administer the surcharge according to rules laid down by the State, and, therefore, operate under the control of the State.
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106 In that regard, it must be observed at the outset, that the surcharge at issue was adopted by the BNetzA decision of 2011 (see paragraphs 10 to 13 above) and that therefore, according to settled case-law (see paragraph 86 above), it is imputable to the State, a point that is not moreover challenged by the applicant.
107 That finding is without prejudice to the matter of whether the BNetzA decision of 2011 may be considered to be a decision that is ultra vires according to German law and to the matter of the annulment of that decision by the German courts and its subsequent repeal (see paragraph 14 above), matters raised by the parties out of time during the proceedings and which do not call into question the fact that that decision was actually applied during the relevant period (see paragraphs 14 and 15 above). As is stated in case-law, the effectiveness of the rules on State aid would be considerably weakened if their application could be excluded because aid had been granted in breach of national rules (see, to that effect and by analogy, judgment of 17 September 2014, Commerz Nederland, C‑242/13, EU:C:2014:2224, paragraph 36) and, even if that decision is unlawful, the fact nonetheless remains that it is liable to have an impact as long as it is not repealed or, at the very least, as long as its unlawfulness is not established (see, to that effect and by analogy, judgment of 3 March 2005, Heiser, C‑172/03, EU:C:2005:130, paragraph 38).
108 The same applies with regard to the applicant’s argument that the BNetzA decision of 2011, published in the Amtsblatt der Bundesrepublik Deutschland (Official Journal of the Federal Republic of Germany) on 21 December 2011, did not come into effect until 4 January 2012 and, therefore, was not yet binding on transmission system operators on 15 October 2011, the final date for the publication of pricing tariffs for 2012, which were binding and applicable to all users of the network. That argument, put forward for the first time in response to a written question from the Court, does not call into question the fact that that decision applied during the relevant period.
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(2) The existence of a compulsory charge
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113 As to the merits of the applicant’s arguments, for the purposes of classifying the surcharge at issue as a ‘parafiscal charge’ in the light of the case-law cited, it is necessary to determine whether that surcharge, imposed by the State, was passed on entirely, under a legal obligation, to the persons ultimately liable for payment of that surcharge.
114 In that regard, the positions of the parties diverge as to whether the surcharge at issue was compulsorily passed on to the ‘end user’, as stated in the contested decision (see in particular recitals 135, 138, 140 and 143 of that decision), and therefore as to the identification the persons ultimately liable for payment of the surcharge at issue.
115 The Commission includes in that definition the network users, namely the large consumers of electricity directly connected to the network and the electricity suppliers, which are required to pay the surcharge since they conclude contracts with the network operators to purchase electricity (for themselves as large consumers or for their customers as suppliers) and are therefore ‘end users’ of the service of ‘network use’.
116 The applicant and the Federal Republic of Germany include within that concept the end users of electricity, and not the electricity suppliers, and contend that the surcharge at issue, which is levied only on the network users, is not compulsorily passed on to all the end users of electricity. They also dispute the fact that the network operators are required to collect the surcharge at issue from the network users. According to that interpretation, in essence, the surcharge at issue does not constitute a burden on the State budget, but rather a ‘charge’, that is to say, a transfer of funds which private entities pay to each other.
117 It is therefore necessary to identify the persons ultimately liable for payment of the surcharge at issue and determine whether the surcharge is compulsory for them.
118 As regards the persons ultimately liable for payment of the surcharge at issue, it is necessary to distinguish between, on the one hand, the relationship between the network operators and the network users (for the most part electricity suppliers, but also large consumers of electricity) and, on the other hand, the relationship between the electricity suppliers and the electricity consumers: the surcharge at issue concerns only the former relationship, that between the operators and the users, since the surcharge is collected for the use of the network and not for the consumption of electricity.
119 In those circumstances, the question raised by the applicant (see paragraph 116 above) as to whether the electricity suppliers were obliged in turn to pass the surcharge in question on to their customers, that is to say, to all end users of electricity, is irrelevant bearing in mind the fact that the persons ultimately liable for payment of that surcharge were the network users, that is to say the suppliers themselves and the end users directly connected to the network, and not the other end users.
120 As regards the compulsory nature of the surcharge at issue, first of all, the contested decision sets out clearly an obligation to collect the surcharge at issue and pass it on to the ‘end users’, referring in particular to the BNetzA decision of 2011 (see recitals 135, 138, 140, 141 and 143 of the contested decision), which, in paragraphs 3 and 5.2, mentions those users, together with suppliers, as being the persons ultimately liable for payment of that surcharge, being the network users. That interpretation is borne out by the considerations set out in paragraph 20 of the judgment of the Bundesgerichtshof (Federal Court of Justice) of 6 October 2015 (see paragraph 14 above) and recalled in recital 140 of the contested decision, in which the Bundesgerichtshof (Federal Court of Justice) concluded that the surcharge at issue did not constitute consideration for the use of the network but a surcharge that was aiming at covering the financial losses of the network operators.
121 Furthermore, it must be observed that, in order for a measure to constitute a ‘charge’ for the purposes of Article 30 or Article 110 TFEU, it is sufficient for it to be levied on intermediate goods or services, without necessarily being passed on to the end users of downstream products or services, case-law having confirmed that, for the purposes of the application of those provisions, the identity of the person liable for payment of the charge is of little account in so far as the charge relates to the product or to a necessary activity in connection with the product (see, to that effect, judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 49). The decisive factor in that regard, as stated in the case-law cited in paragraph 90 above, 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.
122 Next, it must be observed that, in the present case, after stating that the surcharge at issue had been ordered, in a legally binding manner, by the BNetzA decision of 2011, the Commission concluded, in recital 143 of the contested decision, that the BNetzA decision of 2011 imposed on distribution system operators an obligation to collect the surcharge at issue from all end users or suppliers and that that decision also provided that the proceeds of that surcharge must be transferred to the various transmission system operators on a monthly basis.
123 Paragraph 3, in conjunction with paragraph 5.2, of the BNetzA decision of 2011 provides that distribution system operators are required to collect the surcharge at issue ‘from all end consumers or suppliers and transfer it to the transmission system operators on a monthly basis’. It must therefore be concluded that the surcharge at issue, introduced by an administrative authority through a regulatory measure, was binding on end users, being the network users, in so far as that decision required distribution system operators to pass on to those consumers the extra costs related to the surcharge at issue, unlike the situation that gave rise to the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268, paragraph 70).
124 Moreover, first, the Commission’s conclusion to that effect is based on the interpretation given by the German authorities during the administrative procedure, which makes clear that the distribution system operators had an obligation to collect the surcharge at issue from end users or suppliers and to transfer it to the various transmission system operators on a monthly basis. Secondly, irrespective of the fact that in the Opening Decision the Commission clearly stated that the BNetzA decision of 2011 had imposed on distribution system operators an obligation to collect the surcharge at issue from the end users, being the network users (see inter alia paragraph 14 of the Opening Decision), the German authorities did not put forward any argument during the administrative procedure to challenge that statement.
125 Furthermore, as regards the argument that the BNetzA decision of 2011 had no binding effects, since the payment obligation incumbent on the network users stemmed exclusively from private law contracts between the network operators and the network users, and that the BNetzA could not impose an obligation that was not authorised under the legislative framework, namely StromNEV 2011 and the Combined Heat and Power Generation Act of 19 March 2002, to which StromNEV 2011 referred, and irrespective of the admissibility of that argument, which was put forward in the reply, it should be noted that the wording of paragraph 3 of the BNetzA decision of 2011 imposes the obligation to collect the surcharge at issue on the distribution system operators, which are therefore required to collect that surcharge from their customers. However, since that decision was part of the scheme in force during the relevant period and had binding effects which, moreover, were not removed by the provisions which successively repealed that scheme (see paragraphs 14 and 15 above), it must be concluded that the scheme based on the surcharge at issue produced an effect that was legally binding.
126 Lastly, the Commission stated, in recitals 39, 144 and 145 of the contested decision, that the mechanism of the surcharge at issue fully compensated network operators for their losses in revenue stemming from the exemption at issue, since the amount of that surcharge was adjusted to meet the financial needs triggered by the exemption at issue.
127 That interpretation given by the Commission is borne out by paragraphs 2 and 6 of the BNetzA decision of 2011, according to which transmission system operators must take into account predicted losses in revenue due to the exemption at issue when calculating the surcharge at issue and that the difference between the predicted losses in revenue and the revenue actually lost must be made up by each network operator individually.
128 The other arguments put forward by the applicant are not capable of invalidating those findings.
129 First, regarding the argument that the amount of the surcharge at issue is not set by the State but by the transmission system operators, suffice it to note that, as the Commission stated in recital 37 of the contested decision, for the first year of application of the scheme, the BNetzA decision of 2011 set the initial amount of the surcharge at issue at EUR 440 million, including an estimated amount of EUR 140 million to cover the individual charges applied to non-peak consumers and EUR 300 million for the exemption at issue, and, for the second year of application of the scheme, the BNetzA decision laid down a very detailed methodology for calculating the surcharge. As is clear from paragraphs 1, 2 and 5.2 of that decision, transmission system operators had to determine, on the one hand, the forecasted financial losses resulting from the exemption compared to the full network charge and, on the other hand, the forecasted consumption, in order to determine the amount of the surcharge at issue per kilowatt/hour, taking into account the proceeds resulting from two years earlier. Furthermore, as stated by the Commission in recital 39 of the contested decision, the BNetzA decision of 2011 provided that the transmission system operators had to adjust the amount of the surcharge at issue each year on the basis of the real need in terms of financial resources for the previous year.
130 Secondly, it is necessary to dismiss the argument that there was no legal mechanism for ensuring that losses would be fully offset, in particular because it was impossible to pass on the costs of the surcharge at issue in the event of bad debts. Classification of the surcharge at issue as a parafiscal charge is sufficient for the proceeds of that charge to be considered to be State resources, without the need for the State to undertake to compensate for the losses incurred due to non-payment of that surcharge, in particular in the case of bad debts. Even if, as the Commission acknowledges, the financial effects of losses from bad debts are borne by the distribution system operators, it must be observed that a loss of revenue due to insolvency does not constitute a loss of revenue for the purposes of the scheme in question and is justified on the grounds that the relationships between the network operators and the persons ultimately liable for payment of the surcharge at issue are relationships governed by private law.
131 Thirdly, regarding the argument that by reason of the exclusive allocation of resources resulting from the surcharge at issue the State had no power of disposal over the funds, which, according to the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268, paragraph 76), rules out the surcharge at issue involving the use of State resources, it must be observed that, in paragraph 76 of that judgment, the existence of the exclusive allocation of resources had been assessed during the examination of State control over the network operators, and not during the examination of the existence of a parafiscal charge, as in the present case. That argument will therefore be examined in the context of the examination of State control over those operators (see paragraphs 144 and 145 below). In any event, classification of the surcharge at issue as a parafiscal charge, when confirmed on the basis of the above assessment, is not called into question by the existence of an exclusive allocation of resources. On the contrary, the latter factor confirms that the surcharge mechanism is governed by State provisions.
132 In the light of the above, it must be concluded that the BNetzA decision of 2011, imposing on distribution system operators, in a legally binding manner, an obligation to collect the surcharge at issue from the end users, being the network users, constitutes a parafiscal charge or a compulsory charge within the meaning of the case-law referred to in paragraph 121 above and, therefore, involves the use of State resources.
(3) The existence of State control over the funds collected by way of the surcharge or over the network operators
133 As regards the second factor, namely the existence of State control over the funds collected by way of the surcharge or over the network operators, it must be observed that, clearly, contrary to what the Commission contends, there is no State control over the network operators, in accordance with the principles set out by the Court of Justice in the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), which, nonetheless, concerned the same German electricity network operators. The fact that those operators are subject to authorisation or licensing and are holders of concessions is not sufficient to establish that they operate purely under public control. Similarly, the Court of Justice stated that merely monitoring the proper implementation of the scheme in question was not sufficient in that regard (see, to that effect, judgment of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraphs 77 to 85).
134 However, the absence of constant public control over the network operators is not decisive in the present case, since State control exists over the funds, that is to say over the entire mechanism for collecting and allocating the surcharge at issue (see also case-law cited in paragraph 89 above).
135 In that regard, it must be observed that the BNetzA decision of 2011 requires the network operators to collect from the network users, including end users, the surcharge at issue, as calculated by the BNetzA (for the year 2012) or according to the methodology set out by the BNetzA (for the year 2013), and the revenues collected are paid to the transmission system operators to offset the extra costs related to the exemption at issue. Furthermore, it is agreed between the parties that the proceeds of the surcharge at issue are allocated exclusively to pursuing the objectives of the scheme under the legislative and regulatory provisions examined. It was also stated, in paragraph 129 above, that, according to the BNetzA decision of 2011, the network operators received a sum corresponding to the extra costs related to the exemption at issue, the amount of the surcharge at issue being adjusted to meet the financial needs triggered by the exemption at issue.
136 In those circumstances, the conclusion must be drawn, first, that there is an analogy between the surcharge at issue and the extra costs related to the exemption at issue and, secondly, that the network operators acted as mere intermediaries in the implementation of a mechanism totally governed by State provisions (see, to that effect and by analogy, judgment of 20 September 2019, FVE Holýšov I and Others v Commission, T‑217/17, not published, under appeal, EU:T:2019:633, paragraphs 115 and 116).
137 The arguments put forward by the applicant do not call into question that finding.
138 First, although the fact that the surcharge at issue is collected in pursuance of State objectives or of a State policy implemented by the BNetzA decision of 2011 is not in itself a decisive factor in establishing the existence of State control, that does not mean that it is not one of the factors that indicate that State control exists over the system for the collection and allocation of the surcharge at issue.
139 Second, the argument that network operators do not constitute entities appointed by the State to administer the revenues from the surcharge at issue, but are involved exclusively in implementing the system, is unconvincing. According to case-law, express ‘appointment’ is not necessary in that regard where it is demonstrated, on the basis of the considerations set out above, that State control exists over the full mechanism for the collection of the surcharge at issue and the allocation of the proceeds. In the cases in which the absence of such ‘appointment’ by the State was a decisive factor in establishing that the resources in question were not State resources, private-law companies were either simply bound by an obligation to purchase using their own financial resources (see, to that effect, judgments of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraphs 58 to 61, and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraphs 26 and 30), or there was no compulsory charge imposed on end customers or State control over the funds generated by the charge in question (see, to that effect, judgment of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraphs 65 to 86).
140 Third, the fact that network operators are private-law entities and operate on the basis of private-law relationships, in particular so far as the recovery of claims connected with the surcharge at issue is concerned, without enjoying any implementing power, is not in itself decisive, what counts being whether those entities have been appointed by the State to manage 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 20, and of 20 September 2019, FVE Holýšov I and Others v Commission, T‑217/17, not published, under appeal, EU:T:2019:633, paragraph 126). Moreover, the argument that the State was a majority shareholder in one of the transmission system operators, TransnetBW, although it is valid, is irrelevant in that regard.
141 Fourth, it is correct that, according to case-law, the fact that control is exercised by the public authorities to ensure the system is properly implemented is insufficient to establish the existence of control over the operators or over the funds in question (see, to that effect, judgment of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 77).
142 However, in the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268, paragraph 82), the Court of Justice does not call into question the case-law in which it 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 (judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 25), rather it points to the absence, in that case, of two essential factors, namely, the existence of a principle that the obligation to purchase would be covered in full by the Member State in question and the fact that the sums in question were entrusted to the Caisse des dépôts et consignations, that is to say to a public law entity acting under the authority of the State (see, to that effect, judgment of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraphs 83 to 85). That argument is therefore unconvincing when it is demonstrated, as the Commission states, that the State control concerns the entire mechanism for collecting the surcharge at issue and allocating the proceeds of the surcharge, including cover in full of the extra costs generated by that surcharge, on the basis of the above considerations (see paragraph 135 above).
143 Fifth, the argument that the State does not ensure that any loss of revenue will be covered, as it may not be possible to pass on the extra costs and the closed distribution system operators are required to grant the exemption at issue without receiving any reimbursement, has been rejected in the context of the classification of the surcharge at issue as a parafiscal charge (see paragraph 130 above).
144 Sixth, as regards the argument that the exclusive allocation of the resources in question excludes any power on the part of the State to dispose of the funds generated by the surcharge at issue, it is correct that although in some circumstances the EU Courts (see, to that effect, judgments of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 69; of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 66, and of 11 December 2014, Austria v Commission, T‑251/11, EU:T:2014:1060, paragraph 70) have regarded the exclusive allocation of resources as required by the law as indicating that the funds or the administrators of those funds were under public control, and therefore as indicating the use of State resources, in other circumstances the Court of Justice, even in the case of exclusive allocation of resources, has ruled out the existence of a dominant influence of the public authorities, and thus the existence of the use of State resources, in the absence of power to dispose of those funds, that is to say of the possibility of the public authorities to decide on a different allocation of those funds (see, to that effect, judgment of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 76).
145 It should be borne in mind that, in the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), unlike in the previous case-law, the Court of Justice examined that factor in order to assess the existence of State control over the funds in a situation in which it had held that the charge was not compulsory, and stated that the exclusive allocation of the resources tended rather to show, in the absence of any other evidence to the contrary, that the State was specifically not entitled to dispose of those funds, that it is say to decide on an allocation which differed from that provided for by the legislative provisions in question. Therefore, rather than revisiting the previous case-law, which was moreover upheld shortly afterward by the judgment of 15 May 2019, Achema and Others (C‑706/17, EU:C:2019:407, paragraph 66), the Court of Justice deliberately confined itself to saying that, in the absence of any other evidence, that evidence was not sufficient on its own to demonstrate the existence of such control.
146 In the light of all the foregoing, it must be concluded that the surcharge at issue constitutes, according to the relevant case-law, a parafiscal charge or a compulsory charge, the amount of which was set by a public authority (for the year 2012) or according to the methodology imposed by that authority (for the year 2013), which pursues public interest objectives, that it was imposed on the network operators according to objective criteria and that it was collected by those operators according to rules laid down by the national authorities.
147 The exemption at issue therefore constitutes a measure granted through State resources.
148 In those circumstances, the second part of the second plea must be dismissed.
…
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Covestro Deutschland AG 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.
Delivered in open court in Luxembourg on 6 October 2021.
[Signatures]