Provisional text
JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)
24 January 2024 (*)
(State aid – Aid granted by certain provisions of the amended German Law on combined heat and power generation – Reform of the arrangements for support for cogeneration – Decision declaring the aid compatible with the internal market – Concept of ‘State aid’ – State resources)
In Case T‑409/21,
Federal Republic of Germany, represented by J. Möller and R. Kanitz, acting as Agents,
applicant,
v
European Commission, represented by A. Bouchagiar, C. Kovács and C.‑M. Carrega, acting as Agents,
defendant,
THE GENERAL COURT (Eighth Chamber, Extended Composition),
composed of A. Kornezov, President, G. De Baere (Rapporteur), D. Petrlík, K. Kecsmár and S. Kingston, Judges,
Registrar: S. Jund, administrator,
having regard to the written procedure,
further to the hearing on 4 May 2023,
gives the following
Judgment
1 By its action under Article 263 TFEU, the Federal Republic of Germany seeks annulment of Commission Decision C(2021) 3918 final of 3 June 2021 concerning State Aid SA.56826 (2020/N) – Germany – 2020 reform of support for cogeneration and State Aid SA.53308 (2019/N) – Germany – Change of support to existing CHP plants (Paragraph 13 of the Gesetz zur Neuregelung des Kraft-Wärme-Kopplungsgesetzes (Law reforming the Law on Combined Heat and Power Generation) of 21 December 2015 (BGBl. 2015 I, p. 2498; ‘the KWKG 2016’)) (‘the contested decision’), whereby the Commission finds that various measures (‘the measures at issue’) to support the production of electricity by combined heat and power (‘CHP’) plants constitute State aid.
Background to the dispute
Administrative procedure
2 On 28 January 2019, the German authorities notified to the European Commission the amendment to Paragraph 13 of the KWKG 2016 by the Gesetz zur Änderung des Erneuerbare-Energien-Gesetzes, des Kraft-Wärme-Kopplungsgesetzes, des Energiewirtschaftgesetzes und weiterer energierechtlicher Vorschriften (Law amending the Law on renewable energies, the Law on combined heat and power generation and the Law on the energy sector and other provisions in energy matters) of 17 December 2018 (BGBl. 2018 I, p. 2549).
3 On 23 September 2020, the German authorities notified to the Commission further amendments to the KWKG 2016. Those amendments were inserted into Paragraphs 7 and 8 of the Gesetz zur Reduzierung und zur Beendigung der Kohlerverstromung und zur Änderung weiterer Gesetze (Kohleausstiegsgesetz) (Law to reduce and bring to an end the production of electricity from coal and to amend other laws (coal exit law)) of 8 August 2020 (BGBl. 2020 I, p. 1818), and were further amended by Paragraphs 17 and 18 of the Gesetz zur Änderung des Erneuerbare-Energien-Gesetzes und weiterer energierechtlicher Vorschriften (Law amending the Law on renewable energies and other provisions in energy matters) of 21 December 2020 (BGBl. 2020 I, p. 3138).
4 Those amendments to the KWKG 2016 correspond to the legislation on the support of CHP in force since 1 January 2021 (‘the KWKG 2020’).
5 Le 8 April 2021, the Federal Republic of Germany also notified to the Commission the amendment relating to the reduction of the surcharge for hydrogen producers as provided for in Paragraph 27 of the KWKG 2020.
The measures at issue
The objective and description of the measures at issue
6 The objective of the KWKG 2020 is to improve energy efficiency and the protection of the climate and the environment by increasing the net electricity production of CHP electricity by 2025. It aims, in particular, to encourage the transition to new or modernised gas-fired CHP plants and to promote electricity produced by such high-efficiency CHP plants. It also aims to ensure cohesion between support for CHP and the objectives of the energy transition. To that end, the KWKG 2020 envisages a number of measures.
– Measure of general support for electricity production by newly built, modernised and retrofitted high-efficiency CHP plants
7 The KWKG 2020 provides for a measure of general support for electricity production by newly built, modernised and retrofitted high-efficiency CHP plants, capable of using various cogeneration technologies and running on different types of fuel.
8 The general support takes the form of a premium in addition to the proceeds of the sale at market price of the electricity produced (Paragraph 5 et seq. of the KWKG 2020).
9 The operators of CHP plants with a capacity of over 100 kilowatts (kW) must sell the electricity on the market to a third party or consume it themselves. The operators of CHP plants with a smaller capacity have the choice of selling the electricity on the market, consuming it themselves or asking the network operator to purchase it at an agreed price (Paragraph 4 of the KWKG 2020).
10 The support is granted either by means of invitations to tender organised by the national regulator, the Bundesnetzagentur (Federal Network Agency, Germany) (Paragraph 8a of the KWKG 2020), or directly on the basis of the KWKG 2020. In the latter case, the beneficiaries are automatically entitled to receive that support when they meet the eligibility criteria. The beneficiaries’ eligibility is verified by the Bundesamt für Wirtschaft und Ausfuhrkontrolle (Federal Office for the Economy and the Control of Exports, Germany, ‘the BAFA’), upon application by the beneficiaries. If they meet all the criteria, the BAFA must issue a document confirming that eligibility (Paragraph 10 of the KWKG 2020).
11 The KWKG 2020 also makes provision for support for the production of electricity from innovative CHP systems, either by means of invitations to tender organised by the Federal Network Agency, or by the grant of a bonus, and alters the rules applicable to the bonus linked with the exit from coal put in place by the KWKG 2016. Those bonuses are granted only if the CHP plant operators are beneficiaries of the general support measure.
– Measure of support for the production of electricity by existing high-efficiency gas-fired CHP plants in the district heating sector
12 The KWKG 2016 provided for a measure of support for the production of electricity by existing high-efficiency gas-fired CHP plants in the district heating sector until 31 December 2019. Since that support might have given rise to overcompensation for 2018 and 2019, Paragraph 13 of the KWKG 2016 was amended to adjust the premiums granted to those plants for 2019 and thus to eliminate that overcompensation. The arrangements for the grant of the premiums resulting from the KWKG 2020, described in paragraphs 8 and 9 above, are to apply mutatis mutandis.
– Measure of support for heat and cooling storage facilities
13 The KWKG 2020 provides that financial support is to be granted to storage facilities provided that they mainly receive heat produced by a CHP plant connected to the public electricity network. The beneficiaries are automatically entitled to receive that support where they meet the eligibility criteria. The beneficiaries’ eligibility is verified by the BAFA, upon application by the beneficiaries. If they meet all the criteria, the BAFA must issue a document confirming that eligibility (Paragraphs 22 to 25 of the KWKG 2020).
– Measure of support for energy-efficient district heating and cooling networks
14 The KWKG 2020 changes the conditions for the promotion of heat networks by granting financial support to those networks which contain at least a 75% share of CHP or at least 75% of combined heat sources. The beneficiaries are automatically entitled to receive that support where they meet the eligibility criteria. The beneficiaries’ eligibility is verified by the BAFA, upon application by the beneficiaries. If they meet all the criteria, the BAFA must issue a document confirming that eligibility (Paragraphs 18 to 21 of the KWKG 2020).
– Measure reducing the surcharge for hydrogen producers
15 The KWKG 2020 lays down specific rules for undertakings in the ‘manufacture of industrial gases’ sector, in which the production of hydrogen accounts for the majority of the total added value. It limits the amount of the surcharge that can be recovered from hydrogen producers by the network operators (see paragraph 18 below) if those producers benefit from the reduced surcharge under the Renewable Energy Sources Act and other energy-related provisions (Paragraph 27 of the KWKG 2020).
Mechanism for financing the measures at issue
16 The network operator concerned is required by law to pay the beneficiaries the amounts provided for in the KWKG 2020. A CHP plant operator is entitled to receive the premium referred to in paragraph 8 above, and may be entitled to receive the bonuses referred to in paragraph 11 above, from the operator of the network to which that plant is directly or indirectly connected (Paragraph 6(1), Paragraph 7a(1) and (3) and Paragraph 7c(1) of the KWKG 2020).
17 A heating and cooling network operator is entitled to receive the financial support referred to in paragraph 14 above from the transmission system operator whose control area includes the network to which the principal CHP plant feeding into the heating and cooling network is directly or indirectly connected (Paragraph 18(1) and (3) and Paragraph 21 of the KWKG 2020). Similarly, the operator of a heating/cooling storage facility is entitled to receive the financial support referred to in paragraph 13 above from the transmission system operator whose control area includes the network to which the CHP installation feeding into the new heat/cooling storage facility is directly or indirectly connected (Paragraph 22(1) and (3) and Paragraph 25 of the KWKG 2020).
18 The network operators are entitled, but are not required by law, to pass on the costs associated with the measures at issue as a surcharge (‘the KWKG surcharge’) when calculating the network charges which they levy on their customers for each kilowatt hour (kWh) of electricity supplied in Germany by the electricity network (Paragraph 26(1) of the KWKG 2020). By way of derogation, the transmission network operators are entitled to levy a reduced KWKG surcharge on large energy consumers such as hydrogen producers (Paragraph 27 of the KWKG 2020).
19 The amount of the KWKG surcharge is calculated each year by the transmission network operators according to the methodology laid down in the KWKG 2020. It is expressed as a uniform price per kWh of electricity consumed, subject to the reduced rate from which certain categories of users benefit.
20 In order for each network operator to be compensated for the extra costs resulting from its obligations under the KWKG 2020, that law put in place a mechanism according to which those extra costs are spread evenly between network operators (distribution or transmission) in proportion to the consumption of consumers connected to their network, then compensated by means of the KWKG surcharge (Paragraph 28 of the KWKG 2020).
21 The KWKG 2020 establishes an annual budgetary limit of EUR 1.8 billion for the measures at issue and therefore for the total KWKG surcharge (Paragraph 29 of the KWKG 2020).
Contested decision
22 On 3 June 2021, the Commission adopted the contested decision.
23 The Commission characterised the measures at issue as State aid within the meaning of Article 107(1) TFEU and found that they were financed through State resources.
24 In particular, in recitals 220 and 221 of the contested decision, the Commission concluded that the measures to provide support (i) to the production of electricity by newly built, modernised and retrofitted high-efficiency CHP installations; (ii) to energy-efficient district heating and cooling networks; (iii) to heating and cooling storage facilities; and (iv) to the production of electricity by cogeneration in existing highly efficient gas-fired CHP installations in the district heating sector (together ‘the CHP support measures’) were financed from the proceeds of a de iure mandatory levy imposed by the State and managed and apportioned in accordance with the provisions of the legislation.
25 Furthermore, the Commission considered that the measure relating to the reduction of the KWKG surcharge for hydrogen producers constituted a renouncement of State resources.
26 The Commission nonetheless found that the measures at issue were compatible with the internal market under Article 107(3)(c) TFEU and therefore decided not to raise objections.
Forms of order sought
27 The Federal Republic of Germany claims that the Court should:
– annul the contested decision in so far as it is found in that decision that the measures at issue constitute State aid;
– order the Commission to pay the costs.
28 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the Federal Republic of Germany to pay the costs.
Law
29 In support of its action, the Federal Republic of Germany raises a single plea, alleging incorrect interpretation and application of Article 107(1) TFEU, in that the Commission found that the undertakings concerned by the measures at issue benefited from aid granted through State resources.
30 As a preliminary point, it should be borne in mind that categorisation as ‘State aid’ within the meaning of Article 107(1) TFEU requires that four conditions 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 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 46, and of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 31).
31 As regards the existence of intervention by the State or through State resources – the only condition at issue in the present case – it should be borne in mind that, in order for it to be possible to categorise 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 (judgments of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 47, and of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 32).
32 The Federal Republic of Germany does not dispute that the measures at issue are attributable to it. It is clear, moreover, that those measures were established by legislation and that they are therefore attributable to the Member State concerned (see, to that effect, judgments of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraphs 17 and 18, and of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 33).
33 However, the Federal Republic of Germany disputes the Commission’s finding that the measures at issue were granted through State resources.
34 In that regard, it has consistently been held 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 through a public or private body appointed or established by the State to administer it (judgments of 22 March 1977, Steinike & Weinlig, 78/76, EU:C:1977:52, paragraph 20, and of 21 October 2020, Eco TLC, C‑556/19, EU:C:2020:844, paragraph 25).
35 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 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 51, and of 21 October 2020, Eco TLC, C‑556/19, EU:C:2020:844, paragraph 27).
36 The Court of Justice has recently held, in essence, that funds financed by a levy or other compulsory surcharges under national legislation and managed and apportioned in accordance with that legislation, and sums that constantly remained under public control, and therefore available to the competent national authorities, could be categorised as State resources within the meaning of Article 107(1) TFEU. Those two criteria are alternative criteria of the concept of ‘State resources’ within the meaning of Article 107(1) TFEU (see, to that effect, judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraphs 38, 39 and 42).
37 The single plea put forward by the Federal Republic of Germany is divided into three parts. By the first part of the single plea, the Federal Republic of Germany maintains that the fiscal nature of a levy does not in itself confer a State character on the resources levied within the meaning of Article 107(1) TFEU, as that provision always assumes that the resources are constantly under public control and available to the competent national authorities. At the hearing, the Federal Republic of Germany stated, however, that it would not pursue the arguments formulated in the context of that part of the plea, in the light of the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1), and, in particular, the confirmation that the two criteria of the concept of ‘State resources’ were alternative in nature (see paragraph 36 above), which was duly recorded in the minutes of the hearing. It follows that there is no longer any need to adjudicate on the first part of the single plea.
38 By the second part of the single plea, the Federal Republic of Germany submits, in essence, that neither the KWKG surcharge nor the amounts paid by the network managers to the operators of CHP plants, storage installations and district heating and cooling networks (‘the operators of CHP plants and other facilities connected to CHP’) constitute a levy involving the commitment of State resources within the meaning of Article 107(1) TFEU. By the third part of the single plea, the Federal Republic of Germany claims that the Commission was wrong to conclude that the resources levied by the network managers were under constant public control and available to the State.
39 By the second and third parts of the single plea, the Federal Republic of Germany thus claims, in essence, that neither of the two alternative criteria of the concept of ‘State resources’, referred to in paragraph 36 above, is met in the present case.
40 Since, in the context of its analysis of the condition relating to State resources, the Commission distinguished (i) the CHP support measures and (ii) the measure relating to the reduction of the KWKG surcharge for hydrogen producers (see paragraphs 24 and 25 above), the Court considers it appropriate to examine the second and third parts of the single plea together, first as regards the CHP support measures and then as regards the measure relating to the reduction of the KWKG surcharge for hydrogen producers.
The CHP support measures
41 In the contested decision, in arriving at the conclusion that the CHP support measures were granted through State resources, the Commission found, first of all, that in the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), clarified by the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), a distinction had been drawn between State aid measures and measures of mere price regulation that did not involve the intervention of State resources.
42 The Commission observed that, in the present case, the CHP plant operators were required by law to sell their electricity directly on the market, so that the price was freely set by market forces and not through price regulation. As regards the heating and cooling storage facilities and the district heating and cooling networks, no transaction at a set price took place, so that in that respect, too, there was no price regulation.
43 Paying supplementary revenues to operators of CHP plants and other facilities connected to CHP, without consideration, does not correspond to the normal task of electricity network operators. The eligibility criteria were set in the KWKG 2020 and verified by the BAFA. The scale of the financial support paid to the beneficiaries was fully set by the State and, where there was a risk that the total budget of EUR 1.8 billion might be exceeded, it was the BAFA that determined the reduced support rates.
44 The Commission observed that the network operators were required to bear the costs of the CHP support measures and that, consequently, the financial charge which the law imposed on them was a de jure mandatory levy imposed by the State. The fact that the network operators were entitled to pass on the costs to their own customers, but were not required to do so, meant only that those customers were not subject to a de jure mandatory levy. The network operators were subject to such a levy. The Commission took the view that the financing of aid by such a levy at one level of the supply chain is sufficient to establish the existence of State resources, without there being any need to identify a further de jure mandatory levy at another level of the chain.
45 Consequently, the Commission concluded that the CHP support measures were financed from the proceeds of a de jure mandatory levy imposed by the State, managed and apportioned in accordance with the provisions of the legislation.
46 In the context of the second and third parts of the single plea, first, the Federal Republic of Germany claims that the KWKG surcharge is not a levy involving State resources since the KWKG 2020 does not require the network operators to pass on that surcharge to the network’s customers. The network operators finance the payments to the operators of CHP plants and other facilities connected to CHP from their own financial resources.
47 Nor do those payments constitute a levy. The Federal Republic of Germany maintains that the Commission fails to have regard, in that respect, to the case-law relating to parafiscal levies, in particular the judgments of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413); of 15 May 2019, Achema and Others (C‑706/17, EU:C:2019:407); and of 20 September 2019, FVE Holýšov I and Others v Commission (T‑217/17, not published, EU:T:2019:633). That case-law always relates, as in the present case, to a context consisting of two levels or, in other words, a triangular relationship between the plant operator, the network operator and the customer of the network. The Courts of the European Union have not classified the movement of funds between the network operators and the beneficiaries as a levy.
48 Furthermore, the Commission is wrong to rely on the fact that the KWKG 2020 does not constitute a measure of price regulation within the meaning of the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160). The question whether the price of electricity is regulated by law is irrelevant for the purpose of determining the existence of a levy.
49 Second, the Federal Republic of Germany maintains that resources can be regarded as State resources only where they are constantly under public control and therefore available to the national authorities, which the Commission failed to examine.
50 In addition, the influence of the State on the legal framework is not in itself sufficient to support the conclusion that the State has a power of disposal over the funds. As regards the KWKG 2020, neither the State nor the competent national authorities exercise influence over the use of the resources.
51 The Commission acknowledges that the KWKG, on its own, is not a levy in so far as the network operators are not required to pass it on to their customers. However, the Commission maintains that the premium which the network operators pay to the operators of CHP plants and other facilities connected to CHP on the basis of the KWKG 2020 constitutes a levy involving State resources.
52 According to the Commission, that premium is a mandatory unilateral tax imposed by the State on a taxable person and therefore a levy involving State resources. There is no need to establish that the financial burden is passed on to consumers when the existence of a mandatory contribution upstream in the supply chain is established. Thus, in the present case, the ultimate debtor is the network operator, which is in the same legal position as a final consumer. In all cases, the State appropriates to itself a sum having its origin in a private source.
53 The derogation from the prohibition laid down in Article 107(1) TFEU, like that at issue in the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), can be applied only in the event of price regulation and cannot therefore be applied to the payments of the additional prices by the network operators. Treating a legal payment obligation as a mere regulation of market prices is tantamount, according to the Commission, to extending that derogation unduly, which renders Article 107(1) TFEU meaningless.
54 The Commission further submits that, in accordance with the case-law, the fact that a levy, such as that in the present case, is charged is sufficient to establish the existence of State resources and that there is no need to establish more extensive State control. The Commission nonetheless maintains that it examined in the contested decision the question whether the resources which the network operators received by means of the KWKG surcharge were subject to State control. In the interest of completeness, it claims that payment of the premiums complies with the legal provisions of the KWKG 2020 from which the network operators cannot derogate, which allows the State character of those premiums to be inferred.
55 It is appropriate to examine, first of all, the arguments whereby the Federal Republic of Germany alleges that neither the KWKG surcharge nor the amounts paid to the operators of CHP plants and other facilities connected to CHP constitute a levy or other mandatory surcharge within the meaning of the first criterion referred to in paragraph 36 above; next, the arguments alleging an absence of constant public control of the resources within the meaning of the second criterion referred to in paragraph 36 above; and, last, the arguments relating to the application of the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160).
The existence of a levy or of another mandatory surcharge (first criterion referred to in paragraph 36 above)
56 According to the case-law, amounts resulting from the price surcharge imposed by the State on purchasers of electricity are similar to a charge which is levied on electricity and have their origin in ‘State resources’ within the meaning of Article 107(1) TFEU (see judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 34 and the case-law cited).
57 Funds must thus be regarded as ‘State resources’ within the meaning of Article 107(1) TFEU if they derive from compulsory contributions imposed by the legislation of the Member State concerned and are managed and apportioned in accordance with that legislation. In that regard, it is irrelevant that the financing mechanism at issue does not, strictly speaking, fall within the category of fiscal levies under national law (see, to that effect, judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 35 and the case-law cited).
58 However, the fact that the financial burden of the surcharge is borne in practice by a defined category of persons is not sufficient to establish that the funds resulting from that surcharge are in the nature of ‘State resources’ within the meaning of Article 107(1) TFEU. It is also necessary for that surcharge to be compulsory under national law. Thus, the Court of Justice has held that it is not sufficient that the system operators pass on in the electricity sale price to their final customers the additional costs caused by their obligation to purchase electricity generated from renewable energy sources at the statutory rates, where that offsetting is the result only of a practice and not of a legal obligation (see judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraphs 36 and 37 and the case-law cited).
59 It should be noted at the outset that the parties are agreed that the system put in place by the KWKG 2020 is characterised by the existence of ‘two levels’ in the electricity supply chain. Thus, the ‘first level’ corresponds to the relationship between, on the one hand, the operators of CHP plants and other facilities connected to CHP and, on the other, the network operators. The ‘second level’ corresponds to the relationship between the network operators and their customers. As the Federal Republic of Germany observed at the hearing, the network operators are private entities.
60 In the context of the ‘first level’, the network operator concerned has a legal obligation to pay financial support to the operators of CHP plants and other eligible installations connected to CHP (see paragraphs 16 and 17 above). In the context of the ‘second level’, the network operators may, without being required by law to do so, pass on to their customers the financial burden resulting from their obligation to pay the financial support under the KWKG 2020, by means of the KWKG surcharge (see paragraphs 18 to 20 above).
61 In the contested decision, the Commission did not consider that the KWKG surcharge, at the ‘second level’ of the supply chain, constituted a de jure mandatory levy such as to establish the involvement of State resources. It should be noted, moreover, that the network operators are not required by law to pass on the KWKG surcharge to their customers, so that that surcharge cannot be characterised as a mandatory surcharge within the meaning of the case-law cited in paragraphs 57 and 58 above.
62 However, the Commission considered that the contributions imposed by law on the network operators and compulsorily paid to the operators of CHP plants and other facilities connected to CHP, at the ‘first level’ of the supply chain, involved State resources, without there being any need to identify another mandatory contribution at another ‘level’ of the supply chain.
63 It should be stated that, as the Federal Republic of Germany submits, the Commission, in that respect, failed to have regard to the case-law relating to the criterion of the existence of a levy or of other mandatory surcharges.
64 As is apparent from the case-law cited in paragraph 57 above, in order for funds to be considered to be ‘State resources’ within the meaning of Article 107(1) TFEU, they must ‘derive’ from levies or from other mandatory surcharges imposed by the legislation of the State and must be ‘managed and apportioned in accordance with [the] legislation’.
65 The existence of a levy or of other mandatory surcharges under the law therefore concerns the origin of the funds used to grant an advantage, in that it makes it possible to establish that State funds were used to finance that advantage. Such a levy or other mandatory surcharge is the mode of financing the measures.
66 The funds are then managed and apportioned, that is to say allocated, in accordance with the law, which makes it possible to establish that the sums collected by means of a levy or other mandatory surcharges are used exclusively for the purpose of granting an advantage to the beneficiaries in accordance with the legislation.
67 The Commission therefore could not properly consider that the mandatory payments by the network operators to the operators of CHP plants and other facilities connected to CHP, which took place at the ‘first level’ of the supply chain, constituted a levy or another mandatory surcharge such as to establish the involvement of State resources. Those payments concern only the allocation of funds in accordance with the law in so far as the operators are required by law to grant financial support to the operators of CHP plants and other facilities connected to CHP. They do not, however, give any indication of the origin of the funds used by the network operators to grant financial support to the beneficiaries. As the Federal Republic of Germany correctly observed, to consider that the abovementioned payments constitute a levy or another mandatory surcharge within the meaning of the relevant case-law would amount to considering that the financing of the CHP support measures is no different from the grant of the funds to the beneficiaries.
68 Those findings are confirmed by the case-law relating to the measures of State aid designed to support the production of electricity, notably electricity from renewable energy sources, financed by means of price surcharges imposed by the State on purchasers of electricity. In particular, the judgments to which the parties refer in their written pleadings, and which are cited in footnotes 65 and 72 of the contested decision, namely the judgments of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413); of 15 May 2019, Achema and Others (C‑706/17, EU:C:2019:407); and of 20 September 2019, FVE Holýšov I and Others v Commission (T‑217/17, not published, EU:T:2019:633), the latter judgment having been confirmed by the Court of Justice in the judgment of 16 September 2021, FVE Holýšov I and Others v Commission (C‑850/19 P, not published, EU:C:2021:740), concerned obligations, provided for by law, imposed on operators of electricity distribution and transmission networks to pay a price supplement to a subsidiary company of the electricity production undertakings or to purchase electricity from such undertakings at a certain price in order to support the production of that type of electricity. In order to offset the additional costs resulting from such obligations that were borne by the electricity distribution and transmission network operators, the law provided that those operators were to impose a mandatory levy on electricity on consumers of electricity.
69 In the judgments referred to in paragraph 68 above, the mandatory surcharges collected and managed by the operators of electricity distribution and transmission networks at the ‘second level’ of the supply chain served to offset the additional costs resulting from their statutory obligations at the ‘first level’ of that chain. The passing on of the additional cost by means of a mandatory surcharge equivalent to a levy on electricity was distinct from the statutory obligations imposed on the operators of electricity distribution and transmission networks and aimed at supporting the electricity production undertakings. The funds serving to comply with those obligations had their origin in the mandatory surcharges imposed on consumers of electricity, which showed that the measures were financed by the State.
70 The Commission was therefore wrong to conclude, by reference to the case-law cited in paragraph 68 above, that the obligation imposed on the network operators to pay sums to the beneficiaries, at the ‘first level’ of the supply chain, was sufficient to establish the existence of a levy or of another mandatory surcharge such as to establish the involvement of State resources, in so far as that circumstance makes it possible only to establish the allocation of funds in accordance with the law, but gives no indication of the origin of the funds used by the network operators in order to comply with their obligations. Unlike in the situations at issue in the case-law cited in paragraph 68 above, in the present case the Commission did not identify a mandatory surcharge at the ‘second level’ of the supply chain.
71 Nor did the Commission in any way explain in the contested decision at what time and by whom the management of the funds was carried out. It is apparent from the contested decision that the proceeds of the mandatory contributions reach the beneficiaries directly, without the funds being collected or managed by the network operators.
72 In that regard, since it merely puts in place a procedure to offset the burden between network operators, the mechanism whereby the financial burden between those network operators is spread evenly, described in paragraph 20 above, cannot be regarded as a management of the funds used to finance the CHP support measures. In addition, in recital 218 of the contested decision, the Commission found that the eligibility criteria for financial support were laid down in the KWKG 2020 and verified by the BAFA, that the scale of that support was fully set by the State and that, where there was a risk that the total budget of EUR 1.8 billion might be exceeded, it was the BAFA that determined the reduced support rates (see paragraph 43 above). However, those circumstances make it possible to establish only that the network operators cannot derogate from the rules laid down by law, the application of which is verified by the BAFA, and that they must therefore allocate the funds in accordance with the law. They do not, however, make it possible to establish that the funds used by the network operators to pay the beneficiaries had their origin in a levy or other mandatory surcharge collected and managed by the network operators.
73 Furthermore, the Commission was also wrong to assert in the contested decision that the network operators were subject to a de jure mandatory contribution since the law required them to bear the financial burden of the CHP support measures.
74 In that regard, it does indeed follow from the case-law that the financial burden of the surcharge may be borne by a ‘defined category of persons’ (judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 36), so that it is not required that the final consumers are the debtors of that surcharge, as the Commission correctly observed in its written pleadings.
75 However, in the contested decision the Commission merely established that the network operators bore the costs of the CHP support measures. As it observed, those network operators may pass those costs on to their customers by means of the KWKG surcharge. Where they do so, it is the network operators’ customers that must be regarded as bearing the financial burden of the CHP support measures.
76 The Commission cannot therefore claim that the State appropriates to itself the resources of the network operators, since, contrary to its contention, those network operators are not necessarily the ultimate debtors of the financial burden occasioned by the CHP support measures.
77 Therefore, as the Federal Republic of Germany asserts, the fact of having identified a unilateral payment obligation borne by the network operators at the ‘first level’ of the supply chain cannot suffice to establish that the CHP support measures are financed by a levy or by other mandatory surcharges within the meaning of the case-law cited in paragraphs 57 and 68 above.
78 Since the KWKG mandatory surcharge too cannot be characterised as a levy or other mandatory surcharges within the meaning of that case-law (see paragraph 61 above), it must be held that the Commission has not established that the first criterion referred to in paragraph 36 above, which makes it possible to establish a transfer of State resources within the meaning of Article 107(1) TFEU, was met.
79 The Commission’s other arguments cannot invalidate those conclusions.
80 First, the Commission maintains that it follows from recital 218 of the contested decision that payment of the financial support by the network operators to the operators of CHP plants and other facilities connected to CHP, as provided for by law, is not part of the normal task of those network operators. Those operators do not have any degree of contractual freedom as regards the circle of beneficiaries, the amount and the duration of the payments. Those factors show that the KWKG 2020 is not based on a private economic initiative, but on a State initiative.
81 Indeed, it is true that the KWKG 2020 is based on a State initiative and that it pursues a public policy of support for the production of CHP electricity. It is also true that the network operators are required to pay the sums provided for by law to the operators, according to the statutory procedure.
82 However, those considerations correspond to the analysis set out in paragraph 32 above, according to which the CHP support measures were established by legislation, and must therefore be considered to be attributable to the State.
83 As is apparent from the case-law cited in paragraph 31 above, the attributability of the measures to the State, albeit necessary for the purposes of classifying those measures as ‘aid’ within the meaning of Article 107(1) TFEU, is not sufficient in itself for such a classification to be accepted. It must be demonstrated that the advantages in question are granted directly or indirectly through State resources (see, to that effect, judgment of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 63).
84 Accordingly, the fact that the law sets out in detail the procedures for allocating the financial support cannot establish the existence of a transfer of State resources; it can only show responsibility on the part of the State in implementing the mechanism of support for CHP electricity and therefore the attributability to the State of the CHP support measures.
85 The same applies to the argument, put forward by the Commission at the hearing, that it is the German legislature that manages and apportions the proceeds of the mandatory contributions of the network operators. Such a consideration amounts to stating that the legislation establishes, upstream, the procedure for the allocation of the financial support and therefore to demonstrating only that the measures are attributable to the State, not that they are financed through State resources.
86 Second, the Commission claims, in response to the measure of organisation of procedure of 30 March 2023, that the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1), clarified the previous case-law as regards the concept of ‘levy’ in the light of State aid law. It submits that the mere fact that a contribution is fiscal in nature is sufficient for it to be regarded as constituting a State resource.
87 It is true that, in the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1), the Court of Justice made clear that the criterion relating to the existence of a levy or of other mandatory surcharges might make it possible to establish the involvement of State resources within the meaning of Article 107(1) TFEU, without its also being necessary to demonstrate that the criterion relating to constant public control of the funds was also met (see paragraph 36 above).
88 However, the finding that the criteria referred to in paragraph 36 above are alternative in nature has no impact on their respective definitions as determined in the case-law. Thus, in order for the criterion relating to the existence of a levy or of other mandatory surcharges to be considered to be met, it remains necessary to demonstrate that the funds have their origin in de jure mandatory contributions, imposed by the legislation of the State on a defined category of persons, and that those funds are managed and apportioned in accordance with that legislation (see paragraph 64 above).
89 In that regard, it must be stated that, in paragraph 43 of the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1), the Court of Justice held that the national legislation which obliged an electricity distribution undertaking to purchase electricity generated from renewable energy sources at a price higher than the market price and which provided that the resulting additional costs were to be financed by a compulsory surcharge borne by end consumers constituted an intervention through State resources within the meaning of Article 107(1) TFEU. Thus, as in the judgments referred to in paragraph 68 above, it must be established that the advantage compulsorily granted to the beneficiaries at the ‘first level’ of the supply chain was financed by an equally compulsory surcharge at the ‘second level’ of the supply chain. However, the Commission has not established that that was so in the present case.
90 It follows from all of the foregoing that the Commission was wrong to rely on the first criterion set out in paragraph 36 above in order to conclude that, in the present case, the CHP support measures were financed through State resources.
The constant public control of the resources (second criterion referred to in paragraph 36 above)
91 It must be stated at the outset that, as is apparent from paragraphs 41 to 45 above, in the contested decision the Commission relied on the first criterion identified in paragraph 36 above, concerning the existence of a levy or of other mandatory surcharges, to conclude that the CHP support measures were financed through State resources.
92 In particular, the Commission expressly concluded, in recital 220 of the contested decision, that the CHP support measures were financed by means of a mandatory levy, referring in that regard, in footnote 65, to the case-law according to which funds financed by mandatory contributions imposed by the legislation of the State, managed and apportioned in accordance with that legislation, may be considered to be State resources within the meaning of Article 107(1) TFEU (judgments of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 35; of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 25; and of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 54). Contrary to the Commission’s suggestion, it does not follow from that recital that the Commission examined whether the resources which the network operators received by means of the KWKG surcharge were subject to State control.
93 It must therefore be stated that the Commission did not clearly and expressly examine the second criterion identified in paragraph 36 above, concerning constant public control of the resources.
94 While the failure to carry out a clear and express examination of that second criterion does not in itself constitute an error of law, contrary to the Federal Republic of Germany’s assertion, since the two criteria identified in paragraph 36 above are alternatives, it must however be stated that, owing to the absence of that examination, the Commission has also failed to establish that the CHP support measures were financed through State resources on the basis of the second criterion set out in paragraph 36 above.
95 In any event, if the Commission’s argument, according to which the State character of the funds follows from the absence of any discretion on the part of the network operators in the context of the payment of financial support laid down in the KWKG 2020, should be understood as meaning that it established that the second criterion is met, that argument cannot succeed.
96 In that regard, it should be borne in mind that 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 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 37, and of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 53).
97 In the present case, it is true, as follows from recital 218 of the contested decision, that the network operators are required to pay the funds to the beneficiaries without being able to derogate from the beneficiaries’ eligibility criteria or from the amounts of the financial support provided for by the law (see paragraph 43 above).
98 It is sufficient to observe, however, that the fact that the funds used are allocated exclusively to the performance of tasks assigned by law (the legal principle of exclusive allocation of the funds) tends 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 is to say that the State could not decide on an allocation that differed from that laid down in the law (see, to that effect, judgments of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 76, and of 21 October 2020, Eco TLC, C‑556/19, EU:C:2020:844, paragraph 41).
99 Furthermore, although the fact that payment of the financial support complies with the legal provisions of the KWKG 2020 indicates the legal origin of the CHP support measures and therefore a definite influence of the State on the mechanisms established by that legislation, those factors are not sufficient to substantiate the conclusion that the State nonetheless held a power of disposal over the funds used by the network operators (see, to that effect, judgment of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 75). Just as in the case of the criterion relating to the existence of a levy or of other mandatory surcharges, the fact that the law sets out in detail the procedure for the allocation of the financial support cannot establish the existence of a transfer of State resources, but only the attributability to the State of the CHP support measures (see paragraph 84 above).
100 It follows from the foregoing that the Commission has not established that the second criterion referred to in paragraph 36 above, making it possible to establish a transfer of State resources within the meaning of Article 107(1) TFEU, was met.
The application of the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98)
101 As is apparent from paragraphs 41 and 42 above, the Commission considered, in essence, that the CHP support measures did not consist of a measure of ‘mere price regulation’ not involving a transfer of State resources within the meaning of the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160). In that regard, the Commission also referred to the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), and to the judgments of 24 January 1978, van Tiggele (82/77, EU:C:1978:10); of 13 September 2017, ENEA (C‑329/15, EU:C:2017:671); and of 14 September 2016, Trajektna luka Split v Commission (T‑57/15, not published, EU:T:2016:470).
102 As the Federal Republic of Germany submits, that assessment is incorrect.
103 In that regard, it should be observed that the judgments referred to in paragraph 101 above concerned measures, provided for by law, setting the prices of goods or services (judgments of 24 January 1978, van Tiggele, 82/77, EU:C:1978:10, and of 14 September 2016, Trajektna luka Split v Commission, T‑57/15, not published, EU:T:2016:470) or imposing, inter alia, obligations to purchase electricity at a certain price or in a certain quantity (judgments of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160; of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268; and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671). According to the Courts of the European Union, those measures did not involve a transfer of State resources.
104 Apart from the fact that, in the judgments referred to in paragraph 103 above, the Courts of the European Union did not classify those measures as ‘mere price regulation’, it should be observed that they did not rule out the involvement of State resources on account of the way in which the advantage was granted to the beneficiaries, namely by setting the price of goods or by imposing an obligation to purchase goods at a certain price or in a certain quantity, contrary to the Commission’s suggestion.
105 Indeed, in paragraph 59 of the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), it was held that the obligation imposed on private electricity supply undertakings to purchase electricity produced from renewable energy sources at fixed minimum prices could not be considered to be an intervention through State resources, since it did not give rise to a direct or indirect transfer of State resources to the undertakings producing that type of electricity (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, paragraph 34; and of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 69).
106 The Court of Justice explained that, in such circumstances, the private undertakings had not been appointed by the Member State concerned to manage a State resource, but were bound by an obligation to purchase using 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, paragraph 35; and of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 70).
107 According to the case-law, the fact that such entities are appointed by the State to manage a State resource, and not merely bound by an obligation to purchase using their own financial resources, is the ‘decisive’ factor for considering that funds financed by mandatory contributions imposed by the legislation of the State, managed and apportioned in accordance with the legislation, may be considered to be State resources within the meaning of Article 107(1) TFEU, even if they are managed by entities separate from the public authorities (see, to that effect, judgments of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraphs 58 and 59; of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraphs 54 and 55; and of 27 January 2022, Fondul Proprietatea, C‑179/20, EU:C:2022:58, paragraph 94).
108 Thus, the decisive factor is not that the private entities were bound by a mere obligation to purchase electricity, but that they used their own resources to comply with that obligation and were not appointed by the State to manage a State resource.
109 That assertion is confirmed by the other judgments to which the Commission referred in the contested decision, cited in paragraph 101 above. It follows from those judgments that, in order to consider that the condition relating to State resources within the meaning of Article 107(1) TFEU was not fulfilled, the Courts of the European Union relied on the absence of a direct or indirect transfer of State resources, in so far as the advantage was granted by one private entity to another private entity without the intervention of the State or of an entity appointed by the State to manage a State resource. The way in which the advantage was granted to the beneficiaries was not considered to be decisive for the purposes of the examination of the condition relating to the financing of the measures through State resources.
110 In particular, contrary to the Commission’s assertion, in paragraph 90 of the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268) the Court of Justice held that the Commission had failed to establish that the measures were financed by a mandatory surcharge or that there was constant public control of the funds, and had therefore not established that those measures involved State resources. However, the Court of Justice did not find that the ‘first level’ of the supply chain was characterised by ‘price regulation’.
111 Furthermore, contrary to the Commission’s suggestion, notably in response to the measure of organisation of procedure, the statutory obligation of the network operators at the ‘first level’ of the supply chain in the case that gave rise to the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268) was not entirely different from that imposed on the network operators in the present case. In that regard, it follows, in essence, from paragraph 3 of that judgment that the advantage granted to the producers of electricity from renewable resources was not granted solely by means of a legal obligation to purchase electricity, but also by means of a payment of remuneration at tariffs laid down by law or of a market premium irrespective of whether the installation producing the electricity was connected to the network and whether the electricity was sold directly to customers. The latter payment is similar to payment of the financial support to the operators of CHP plants and other facilities connected to CHP. In both cases the network operators were obliged by law to pay financial support to the beneficiaries irrespective of the market price. It must be stated that, in paragraph 90 of the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), the Court of Justice concluded that the Commission had failed to establish that the advantages granted to the beneficiaries had been granted through State resources.
112 Therefore, in order to rule out the application of the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), the Commission was required to establish, irrespective of whether the CHP support measures constituted a measure of ‘mere price regulation’, that the advantage for the operators of CHP plants and other facilities connected to CHP was not granted by the network operators, which are private entities (see paragraph 59 above), through their own financial resources, but that those network operators were appointed by the State to manage a State resource.
113 As is clear from, in particular, paragraphs 90 and 100 above, the Commission has not established that one of the alternative criteria referred to in paragraph 36 was met in the present case. It is therefore sufficient to state that it has not established that the advantage laid down in the KWKG 2020 for the operators of CHP plants and other facilities connected to CHP was financed by the network operators through State resources.
114 It follows that, as the Federal Republic of Germany maintains, the network operators use their own resources to grant the sums provided for by the law to the beneficiaries, within the meaning of the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160). In other words, the funds move from private entities to private entities and remain private throughout their life cycle (see, to that effect, judgment of 21 October 2020, Eco TLC, C‑556/19, EU:C:2020:844, paragraphs 32 and 33).
115 Last, in that the Commission submits that the derogation from the prohibition laid down in Article 107(1) TFEU, like that at issue in the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), should be restricted to cases of ‘price regulation’, failing which Article 107(1) TFEU might be rendered ineffective, it should be borne in mind that the Commission is wrong to maintain, in essence, that there is a category of measures of ‘mere price regulation’ that avoid classification as State aid (see paragraphs 103 to 109 above).
116 Furthermore, while it is true that, according to the case-law cited in paragraph 35 above, EU law cannot permit the rules on State aid to be circumvented merely through the creation of autonomous institutions charged with allocating aid, and thus render Article 107(1) TFEU ineffective, the fact nonetheless remains that only the advantages granted directly or indirectly through State resources are considered to be aid within the meaning of Article 107(1) TFEU.
117 The fact that the obligation on the network operators to pay amounts is imposed by statute and confers an undeniable advantage on certain undertakings is not capable of conferring upon it the character of State aid (see, to that effect, judgment of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 61). Article 107(1) TFEU cannot be applied to State conduct which is not covered by that article, in the present case a measure decided upon by the State, but financed by private entities (see, to that effect, judgment of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraphs 65 and 66).
118 The single plea must therefore be upheld as concerns the CHP support measures.
The measure relating to the reduction of the KWKG surcharge for hydrogen producers
119 In recital 221 of the contested decision, the Commission concluded that the measure relating to the reduction of the KWKG surcharge for hydrogen producers was the result of a renouncement of State resources. It noted that the Court of Justice had recognised that waiving revenue which would otherwise have had to be paid to the State budget constituted a transfer of State resources.
120 The Federal Republic of Germany claims, in the context of the second and third parts of the single plea, that the KWKG surcharge is not a mandatory contribution and that the resources levied in respect of that surcharge are not constantly under State control and available to the State. Ultimately, the KWKG surcharge is not a State resource.
121 It should be borne in mind that the Commission has acknowledged that the KWKG surcharge, taken on its own, did not involve the commitment of State resources since the network operators were not required to pass that surcharge on to their customers.
122 In response to the measure of organisation of procedure adopted by the Court on 30 March 2023, the Commission maintains, however, that it follows from recital 174 of the contested decision that different rules apply to the reduced surcharge for hydrogen as compared with the KWKG surcharge. It submits that Paragraph 27(1) of the KWKG 2020 provides that hydrogen producers are required to pay the KWKG surcharge to the network operators.
123 As already observed in paragraph 61 above, it must be held that the KWKG 2020 does not require the network operators to pass the KWKG surcharge on to their customers, so that that surcharge is not a levy which those customers are required to pay. That surcharge cannot therefore be regarded as a levy or as a de jure mandatory surcharge such as to establish the involvement of State resources.
124 The Commission’s argument that Paragraph 27(1)(2) of the KWKG 2020 establishes an exception in the case of hydrogen producers cannot succeed. Apart from the fact that it did not mention that supposed derogation in the contested decision, it is sufficient to observe that it does not follow from the wording of that provision that hydrogen producers are required to pay the KWKG surcharge. Paragraph 27(1)(2) provides, inter alia, that for large consumers of electricity, like the hydrogen producers, the limitation of the KWKG surcharge is to apply only in so far as that surcharge payable by those undertakings does not fall below a certain amount per kWh. It does not follow from that provision, however, that the KWKG surcharge is compulsorily payable by the hydrogen producers.
125 Consequently, since the KWKG surcharge is not a State resource, the reduction of that surcharge for the hydrogen producers does not constitute a renouncement of State resources.
126 The Commission was therefore wrong to consider that the measure relating to the reduction of the KWKG surcharge for the hydrogen producers was financed through State resources. The single plea must therefore be upheld with regard to that measure also.
127 It follows from all of the foregoing that the Federal Republic of Germany’s action must be upheld in so far as the Commission incorrectly found that the measures at issue constituted State aid financed through State resources. The contested decision must therefore be annulled.
Costs
128 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Federal Republic of Germany.
On those grounds,
THE GENERAL COURT (Eighth Chamber, Extended Composition)
hereby:
1. Annuls Commission Decision C(2021) 3918 final of 3 June 2021 concerning State Aid SA.56826 (2020/N) – Germany – 2020 reform of support for cogeneration and State Aid SA.53308 (2019/N) – Germany – Change of support to existing CHP plants (Paragraph 13 of the Gesetz zur Neuregelung des Kraft-Wärme-Kopplungsgesetzes (Law reforming the Law on combined heat and power generation) of 21 December 2015 (BGBl. 2015 I, p. 2498));
2. Orders the European Commission to pay the costs.
Delivered in open court in Luxembourg on 24 January 2024.
[Signatures]