On 10 May 2016, the General Court of the European Union
("Court") handed down a judgment in a case concerning the
German law on renewable energy of 2012 (the
Erneuerbare-Energien-Gesetz 2012 - "EEG 2012")
(case T-47/15, Germanyvs. Commission).
The EEG 2012, which was replaced by a new law in 2014, laid down
a scheme to support firms producing electricity from renewable
energy sources and mine gas ("EEG Electricity"). Network
operators at all voltage levels were obliged to buy EEG Electricity
at a price determined by law, which was higher than the market
price. This electricity was then resold to the transmission system
operators ("TSOs"). The TSOs had to sell the EEG
Electricity on the spot market of the electricity exchange. If the
selling price did not cover the financial burden resulting from the
purchase obligation, the TSOs were entitled to impose an "EEG
Surcharge" on their supplies to the final customers. In
practice, therefore, the EEG Surcharge was borne by the final
customers. However, specific firms, such as energy intensive
manufacturers, were eligible for a cap on this (passed on)
surcharge in order to be able to maintain their international
In its decision of 25 November 2014, the European Commission
("Commission") found that: (i) the support for firms
producing EEG Electricity constituted compatible state aid, and
(ii) the reduction in the EEG Surcharge for specific
electricity-intensive manufacturers constituted state aid which was
for the most part also compatible with EU law. Even though the
Commission had largely approved the aid, Germany brought an action
for annulment of the Commission decision before the Court.
Germany contested the Commission's finding that the EEG 2012
involved state resources. In support of its position, Germany
referred to the judgment of the Court of Justice of the European
Union ("ECJ") in PreussenElektra (case C-379/98,
PreussenElektra v Schleswag) in which the ECJ had
held that the previous German law on renewable energy did not
constitute state aid because no state resources were involved.
However, the Court rejected Germany's argument. According to
the Court, the Commission was correct in taking the view that the
EEG 2012 involved state resources, since, first, the funds
generated by the EEG Surcharge and administered collectively by the
TSOs remained under the dominant influence of the public
authorities. Second, the amounts in question, generated by the EEG
Surcharge, were obtained by means of charges ultimately imposed on
private persons and which could be assimilated to a levy whose
revenue was allocated to the financing of the aid. Third, it
followed from the powers and tasks given to the TSOs that they did
not act freely and on their own behalf, but as administrators of
aid granted through state funds.
As regards the PreussenElektra judgment, the Court
stressed that the EEG 2012 was substantially different from the
previous German law. Unlike the EEG 2012, the funds at issue in
that case could not be considered to be state resources since they
were not at any time under public control and there was no
mechanism, established and regulated by the state, for offsetting
the additional costs arising from the obligation to purchase the
The Court also rejected all other arguments which Germany had
put forward to have the Commission's decision annulled.
Accordingly, the Court dismissed the action in its entirety.
This case is interesting as it applies the criterion of state
resources to a case very similar to a landmark case on this
subject, i.e. the Preussen Elektra case. It shows which
facts can lead the Commission and the Court to reach a different
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about your specific circumstances.
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