Appeal brought on 3 April 2024 by the European Commission against the judgment of the General Court (Eighth Chamber, Extended Composition) delivered on 24 January 2024 in Case T-409/21, Federal Republic of Germany v European Commission
(Case C-242/24 P)
Language of the case: German
Parties
Appellant: European Commission (represented by: A. Bouchagiar, C.-M. Carrega and C. Kovács, acting as Agents)
Other party to the proceedings: Federal Republic of Germany
Form of order sought
The appellant claims that the Court should:
set aside the judgment of the General Court (Eighth Chamber, Extended Composition) of 24 January 2024 in Case T-409/21, Federal Republic of Germany v European Commission;
dismiss the action brought at first instance as unfounded;
in the alternative, set aside the judgment of the General Court of 24 January 2024 in Case T-409/21, Federal Republic of Germany v European Commission, in so far as it concerns the measures referred to in recital 198(a) to (d) of Commission Decision C(2021) 3918 final of 3 June 2021 on State Aid SA.56826 (2020/N) – Germany – 2020 reform of support for cogeneration and on State Aid SA.53308 (2019/N) – Germany – Change of support to existing CHP plants (§ 13 KWKG);
in the alternative, dismiss the action brought at first instance as unfounded, in so far as it concerns the measures referred to in recital 198(a) to (d) of Commission Decision C(2021) 3918 final of 3 June 2021 on State Aid SA.56826 (2020/N) – Germany – 2020 reform of support for cogeneration and on State Aid SA.53308 (2019/N) – Germany – Change of support to existing CHP plants (§ 13 KWKG);
order the Federal Republic of Germany to pay the costs.
Grounds of appeal and main arguments
The appellant relies on a single ground of appeal.
By its single ground of appeal, the appellant submits that the General Court erred in law in its interpretation of the condition relating to ‘State resources’ for characterising a measure as state aid under Article 107(1) TFEU.
In the context of that ground of appeal, the appellant submits, first, that the General Court erred in law in holding that the fact that the financial burden of the measures relating to support for CHP was borne by the distribution system operators did not constitute a levy or other compulsory surcharge within the meaning of the case-law of the Court of Justice.
Second, the appellant submits, in the context of its single ground of appeal, that the General Court erred in law in holding that the case-law of the Court of Justice in PreussenElektra 1 is not limited to cases in which the State intervenes in relation to the pricing of a transaction – through market price regulations such as the setting of minimum or regulated prices or minimum purchase quantities –, but also encompasses situations in which the State mandates direct payment obligations between private parties, without such obligations being based on any kind of transactional relationship.
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1 Case C-379/98 (EU:C:2001:160).