(Case C‑405/16 P)

Federal Republic of Germany

v

European Commission

Judgment of the Court (Third Chamber), 28 March 2019

(Appeal — State aid — Aid granted by certain provisions of the amended German law concerning renewable energy sources (EEG 2012) — Aid supporting renewable electricity and reduced EEG surcharge for energy-intensive users — Decision declaring the aid partially incompatible with the internal market — Concept of State aid — Advantage — State resources — Public control of resources — Measure which can be assimilated to a levy on electricity consumption)

State aid — Concept — Aid from State resources — Public policy of supporting producers of electricity from renewable sources — Funds generated by a surcharge imposed on electricity suppliers and administered collectively by entities subject to State control — Surcharge which cannot be assimilated to a levy — No power of disposal in respect of the funds on the part of the State — No public control of the entities managing the funds — Not included

(Art. 107(1) TFEU)

(see paragraphs 64-87)

Résumé

The Court of Justice annuls the Commission decision stating that the 2012 German renewable energy law (EEG 2012) involved State aid

In the judgment in Germany v Commission (C‑405/16 P), delivered on 28 March 2019, the Court of Justice, on the one hand, upheld Germany’s appeal against the judgment of the General Court of 10 May 2016, Germany v Commission (T‑47/15, EU:T:2016:281), in which the General Court rejected as unfounded its action for annulment of Commission Decision (EU) 2015/1585 of 25 November 2014 ( 1 ) and, on the other hand, annulled the decision at issue. Unlike the Commission and the General Court, the Court of Justice held that the measures adopted by Germany to support producers of electricity from renewable energy sources and mine gas (EEG electricity) ( 2 ) could not be categorised as State resources.

The EEG 2012, which was aimed at ensuring a price above the market price for EEG electricity producers, included in particular an obligation for all network operators to purchase EEG electricity at rates laid down by law and to sell it on the spot market of the electricity exchange. If the price obtained did not enable them to cover the financial burden of the purchase at the rates determined by law, a mechanism called the ‘EEG surcharge’ allowed them to require the suppliers to the final customers to pay them the difference on the basis of the quantities sold. Those suppliers in turn had the option, but no obligation, to pass on the EEG surcharge to the final customers.

In the decision at issue, the Commission, inter alia, considered that the measures thus adopted, which were unlawful in so far as they had not been notified to it, ( 3 ) constituted State aid, but that they were nevertheless compatible with the internal market, subject to the implementation of a commitment by Germany. In its judgment, the General Court, inter alia, held that the Commission had, rightly, considered that the EEG 2012 involved State resources. According to the General Court, the mechanisms of the EEG 2012 derived, principally, from the implementation of a public policy to support producers of EEG electricity. In addition, the funds generated by the EEG surcharge, which remained under the dominant influence of the public authorities, and could be assimilated to a levy, involved a State resource. Finally, the entities required to administer those mechanisms did not act freely and on their own behalf but as administrators of aid granted through State funds.

The Court of Justice considers, in the present case, that both the General Court in the judgment under appeal and the Commission in the decision at issue erred in law in considering that the measures at issue involved State resources.

In that regard, it finds first that, since the EEG 2012 did not encompass any obligation to pass on the EEG surcharge to final customers, the General Court was not entitled to consider that it could ‘be assimilated, from the point of view of its effects, to a levy on electricity consumption’. It holds, next, that it has neither been established that the State held a power of disposal over the funds generated by the EEG surcharge nor whether it exercised public control over the entities responsible for managing those funds. First, the General Court merely demonstrated that public authorities exercised a dominant influence over the funds generated by the surcharge without being able to conclude that the State was entitled to dispose of those funds, that it is say, to decide on an allocation which differs from that laid down in the EEG 2012. While the factors thus accepted permit the conclusion that the public authorities monitor the proper implementation of the EEG 2012, they cannot, by contrast, permit the conclusion that there is public control over the funds generated by the EEG surcharge themselves.

For the same reasons, the Court of Justice holds that the Commission failed to establish that the advantages provided for by the EEG 2012 involved State resources and therefore constituted State aid and consequently annuls the decision at issue.

( 1 ) Commission Decision (EU) 2015/1585 of 25 November 2014 on State aid proceedings SA.33995 (2013/C) (ex 2013/NN) (implemented by Germany for the support of renewable electricity and energy-intensive users) (OJ 2015 L 250, p. 122, ‘the contested decision’).

( 2 ) Gesetz zur Neuregelung des Rechtsrahmens für die Förderung der Stromerzeugung aus erneuerbaren Energien (Law revising the legal framework for the promotion of electricity production from renewable energy) (BGBl. 2011 I, p. 1634; ‘the EEG 2012’). That law was applied only from 1 January 2012 to 31 July 2014, before being replaced by the EEG 2014, approved by the Commission decision of 27 July 2014.

( 3 ) Article 108(3) TFEU.