Action brought on 9 July 2021 – Germany v Commission

(Case T-409/21)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: J. Möller and R. Kanitz, acting as Agents)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the European Commission’s decision of 3 June 2021 on 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 (§ 13 KWKG), to the extent that it finds that

the support to the production of CHP electricity in new, modernised and retrofitted highly efficient CHP installations,

the support to energy-efficient district heating/cooling networks,

the support to heat/cooling storage facilities,

the support to the production of CHP electricity in existing highly efficient gas-fired CHP installations in the district heating sector, and

the reduced CHP surcharge for hydrogen producers

constitute State aid under the KWKG 2020; and

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law. According to the applicant, the European Commission erred in law in its interpretation and application of Article 107(1) TFEU by determining that the undertakings concerned by the notified measures had received aid granted by the State or through State resources. The applicant submits that the European Commission, first, erred in assuming that the fiscal nature of a surcharge of itself implies that the funds raised have the characteristic of State resources within the meaning of Article 107(1) TFEU. The applicant submits that the European Commission, secondly, erred in assuming that the CHP-surcharge under the Gesetz für die Erhaltung, die Modernisierung und den Ausbau der Kraft-Wärme-Kopplung 2020 (‘the Law on Combined Heat and Power Generation; ‘the KWKG’) actually constitutes a tax within the meaning of the case-law of the European Court of Justice. The applicant submits that the European Commission, thirdly, erred in assuming that the resources received by the transmission system operators are under public control and are thus at the disposal of the State.

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