Case T‑251/11

Republic of Austria

v

European Commission

(State aid — Electricity — Aid for energy-intensive businesses — Austrian Green Electricity Act — Decision declaring the aid incompatible with the internal market — Concept of State aid — State resources — Imputability to the State — Selectivity — General regulation on exemption by category — Misuse of powers — Equal treatment)

Summary — Judgment of the General Court (Fifth Chamber), 11 December 2014

1.      Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based

(Rules of Procedure of the General Court, Art. 44(1))

2.      State aid — Concept — Aid coming from State resources — Mechanism for obligatory purchase of green electricity at a price higher than the market price, designed to promote the production of that electricity — Mechanism managed by a limited company under a State concession — Cost borne by final consumers — Contributions of final consumers assimilable to a parafiscal levy — Measure providing for partial exemption in favour of energy-intensive businesses — Measure implying the use of State resources

(Art. 107(1) TFEU)

3.      State aid — Concept — Grant of advantages imputable to the State — Aid mechanism established by statute — Included

(Art. 107(1) TFEU)

4.      State aid — Concept — Granting of an advantage to beneficiaries — Measures designed to compensate for competitive disadvantages that may be suffered by national energy-intensive businesses in comparison with other electricity-consuming businesses — Included

(Art. 107(1) TFEU)

5.      State aid — Concept — Selective nature of the measure — Derogation from the general tax system — Justification based on the nature and economy of the system — Burden of proof

(Art. 107(1) TFEU)

6.      State aid — Concept — Selective nature of the measure — Criteria for assessment — Taking into account previous practice — Exclusion — No breach of the principle of equal treatment

(Art. 107(1) TFEU)

7.      State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid for protection of the environment — Guidelines on State aid for protection of the environment — Scope — Mechanism for obligatory purchase of green electricity at a price higher than the market price — Cost borne by final consumers in the form of a tax assimilable to a parafiscal levy — Measure providing for partial exemption in favour of energy-intensive businesses — Inclusion

(Art. 107(3) TFEU; Commission Notice 2008/C 82/01, paras 58, 59, 70 and 151)

8.      State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid for protection of the environment — Guidelines on State aid for protection of the environment — Aid in the form of reductions in or exemptions from environmental taxes — Reductions in environmental taxes coming under ‘non-harmonised’ taxation — Examination by the Commission of the need for and proportionality of the aid and its effects — Action for annulment of the decision finding the aid incompatible with the internal market — Evidential obligations of the Member State

(Art. 107(3) TFEU; Commission Notice 2008/C 82/01, paras 151 to 159)

9.      State aid — Prohibition — Exceptions — Categories of aid, defined by regulation, which may be regarded as compatible with the internal market — Regulation No 800/2008 — Exemption for aid in the form of reductions in environmental taxes — Criteria for application — Taxes harmonised at the European level

(Art. 107(3) TFEU; Commission Regulation No 800/2008, Art. 25)

1.      See the text of the decision.

(see paras 26-31)

2.      As regards the examination, from the standpoint of Article 107(1) TFEU, of a national measure designed to encourage the production of green electricity by guaranteeing to each producer of green electricity the purchase of the total quantity of that electricity at a fixed price higher than the market price of electricity, while at the same time providing for a transfer of the costs thereby incurred by electricity distributors to electricity consumers by means of an obligatory price supplement lined to the purchase of green electricity, the Commission does not err in taking the view that the advantage granted to energy-intensive businesses, who are entitled, on application, to an exemption from the obligation to purchase green electricity on payment of a compensatory amount, implied the use of State resources, even if that aid mechanism is managed by a centre for the regulation of green electricity, the performance of whose tasks has been the subject-matter of a concession granted to a private limited company held as to 50.4% by shareholders under private control.

That limited company is entrusted by national law with administering the system of aid for the production of electricity from renewable sources. The system laid down by that law may be defined as constituting a State concession, the funds in question being paid exclusively for public interest purposes, defined by the national legislature. Moreover, the compulsory price supplement lined to the purchase of green electricity can be assimilated to a parafiscal levy on electricity, which is set by a public authority, for purposes in the public interest and according to an objective criterion. Thus it is possible to classify the amounts in question as funds originating in a State resource, assimilable to a parafiscal levy.

Furthermore, whilst it is true that the body entrusted with managing the system of aid for production of electricity from renewable sources is presented in the form of a limited company governed by private law, the action of that body, in the context of the concession to carry out the tasks entrusted to the centre for the regulation of green electricity, is not that of an economic entity acting freely on the market for the purpose of making a profit, but an action defined by the national legislature, which circumscribed it so far as the performance of the concession in question is concerned. In that regard, the existence of a strict control of the compliance of that body’s activities with the legislative framework provided for, effected by various State bodies at many levels, corroborates the conclusion that that body does not act freely and on its own behalf, but as an administrator, in the execution of a concession, of aid granted through State funds.

In those circumstances, the Commission is correct to assert that the advantage provided for in favour of energy-intensive businesses constitutes, in this instance, an additional burden for the State, in so far as any reduction in the amount of the tax to which they are subject may be considered to have led to losses in revenue for the State.

(see paras 67, 68, 70, 72, 75, 76, 83)

3.      See the text of the decision.

(see paras 85-87)

4.      See the text of the decision.

(see paras 94, 111-116)

5.      The concept of State aid does not refer to State measures which differentiate between undertakings and which are, therefore, prima facie selective, where that differentiation arises from the nature or the overall structure of the system of which they form part. However, tax exemptions which are the result of an objective that is unrelated to the tax scheme of which they form part cannot circumvent the requirements under Article 107(1) TFEU.

Furthermore, for the purpose of assessing the selective nature of the advantage conferred by a tax measure, the determination of the reference framework has a particular importance, since the very existence of an advantage can be established only by comparison with ‘normal’ taxation. Thus, in order to classify a domestic tax measure as ‘selective’, it is necessary to begin by identifying and examining the common or ‘normal’ regime applicable in the Member State concerned. It is by comparison with that common or ‘normal’ tax regime that it is necessary, second, to assess and determine whether any advantage granted by the tax measure at issue may be selective by demonstrating that the measure derogates from that common regime in so far as the measure differentiates between economic operators who, in light of the objective assigned to the tax system of that Member State, are in a comparable factual and legal situation.

In that context, it is for the Member State which has introduced a differentiation between undertakings in relation to charges to show that it is actually justified by the nature and general scheme of the system in question.

(see paras 96, 97, 117)

6.      See the text of the decision.

(see paras 123-130)

7.      See the text of the decision.

(see paras 155-165)

8.      As regards State aid granted in the form of reductions in or exemptions from environmental taxes, it follows from point 152 et seq. of the Guidelines concerning State aid for the protection of the environment that the latter provide for two different situations, depending in particular on whether the taxes in question have been harmonised and whether the minimum level of Community taxation is respected.

Concerning, more particularly, aid in the form of reductions in environmental taxes coming under ‘non-harmonised’ taxation, it follows from point 154 et seq. of those Guidelines that the Commission relies on the information supplied by the Member States of the European Union in order to assess the tax schemes which include elements of State aid in the form of reductions of or exemptions from taxes such as those referred to above, for the purpose of analysing, in particular, the ‘necessity’ and ‘proportionality’ of the aid and its effects at the level of the economic sectors concerned.

Where the Commission concludes, having regard to the evidence at its disposal, that granted in the form of a reduction in environmental taxes is incompatible with the internal market, it is for the Member State to demonstrate that the aid in question should be exempted. In order to establish that the Commission made a manifest error of assessment in examining the facts such as to justify the annulment of the contested decision, the evidence adduced by the Member State must be sufficient to render the factual assessments used in the decision at issue implausible.

(see paras 167, 178-180)

9.      See the text of the decision.

(see paras 200-203)