Provisional text
JUDGMENT OF THE COURT (Fourth Chamber)
9 July 2026 (*)
( Appeal – State aid – Combined heat and power generation sector – Reform of the arrangements for support for cogeneration – Decision of the European Commission declaring the aid compatible with the internal market – Concept of ‘State aid’ – Measures granted through State resources – Condition relating to the existence of a compulsory surcharge )
In Case C‑242/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 April 2024,
European Commission, represented by A. Bouchagiar, C.-M. Carrega and C. Kovács, acting as Agents,
appellant,
the other party to the proceedings being:
Federal Republic of Germany, represented by J. Möller and R. Kanitz, acting as Agents,
applicant at first instance,
THE COURT (Fourth Chamber),
composed of I. Jarukaitis, President of the Chamber, T. von Danwitz, Vice‑President of the Court, acting as Judge of the Fourth Chamber, M. Condinanzi (Rapporteur), N. Jääskinen and R. Frendo, Judges,
Advocate General: D. Spielmann,
Registrar: D. Dittert, Head of Unit,
having regard to the written procedure and further to the hearing on 11 June 2025,
after hearing the Opinion of the Advocate General at the sitting on 23 October 2025,
gives the following
Judgment
1 By its appeal, the European Commission asks the Court of Justice to set aside the judgment of the General Court of the European Union of 24 January 2024, Germany v Commission (T‑409/21, ‘the judgment under appeal’, EU:T:2024:34), by which the General Court annulled Commission Decision C(2021) 3918 final of 3 June 2021 concerning 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 (Paragraph 13 of the Gesetz zur Neuregelung des Kraft-Wärme-Kopplungsgesetzes (Law reforming the Law on Combined Heat and Power Generation) of 21 December 2015 (BGBl. 2015 I, p. 2498; ‘the KWKG 2016’)) (‘the decision at issue’), by which the Commission found that various measures (‘the measures at issue’) to support the production of electricity by combined heat and power (‘CHP’) plants constitute State aid.
The background to the dispute and the decision at issue
2 The background to the dispute and the decision at issue are set out in paragraphs 2 to 26 of the judgment under appeal. They may be summarised as follows for the purposes of the present judgment.
The measures at issue and their financing
3 On 28 January 2019 and 23 September 2020, the German authorities notified the Commission of a series of measures resulting from amendments to the KWKG 2016, some of which were further amended over the course of December 2020. Those amendments, taken together, and the measures which they entail correspond to the legislation on the support of CHP in force since 1 January 2021 (‘the KWKG 2020’), in addition to which there was a final amendment relating to the reduction of the surcharge for hydrogen producers as provided for in Paragraph 27 of the KWKG 2020.
4 The objective of the KWKG 2020 is, in particular, to improve energy efficiency and the protection of the climate and the environment by increasing the net electricity production from CHP installations by 2025.
5 To that end, it provides for a series of measures to provide support, first, for the production of electricity by newly built, modernised and retrofitted high-efficiency CHP installations; second, for energy-efficient district heating and cooling networks; third, for heating and cooling storage facilities; and, fourth, for the production of electricity in existing highly efficient gas-fired CHP installations in the district heating sector (together, ‘the CHP support measures’). Fifth, the KWKG 2020 also provides for a support measure for the sector for the manufacture of industrial gases in which hydrogen production accounts for the majority of the total added value.
6 Those various measures, which constitute the measures at issue, either take the form of a premium, to which, in certain cases, a bonus may be added, in addition to the proceeds of the sale at market price of the electricity produced, or, solely for the sector for the manufacture of industrial gases, in which hydrogen production accounts for the majority of the total added value, take the form of a limit of the amount of the surcharge that can be recovered from hydrogen producers by the network operators.
7 The support is granted by means of invitations to tender organised by the national regulator, namely the Bundesnetzagentur (Federal Network Agency, Germany; ‘the BNetzA’), or directly on the basis of the KWKG 2020. In the latter case, the beneficiaries of that support are entitled to receive it when they meet the eligibility criteria, by submitting an application that is verified by the Bundesamt für Wirtschaft und Ausfuhrkontrolle (Federal Office for the Economy and the Control of Exports, Germany; ‘the BAFA’). If the beneficiaries meet all of those criteria, the BAFA must issue a document confirming that eligibility.
8 The mechanism for financing the CHP support measures is described by the General Court as follows.
9 First, any distribution or transmission network operator is legally obliged to pay the beneficiaries of CHP support measures, those beneficiaries being connected to its network, the amounts provided for by the KWKG 2020 and those beneficiaries are entitled to receive them (‘the KWKG support’).
10 In particular, the distribution network operators pay the KWKG support for electricity produced by cogeneration in newly built, modernised and retrofitted high-efficiency cogeneration plants and in existing amortised, high-efficiency gas-fired cogeneration plants.
11 The transmission network operators pay the KWKG support for the construction and extension of energy-efficient district heating and cooling networks and for the construction and retrofitting of heating and cooling storage facilities.
12 In order for each network operator to be compensated for the additional financial burden resulting from its obligations under the KWKG 2020, the latter put in place a mechanism by which that burden is spread evenly between network operators – distribution or transmission – in proportion to the consumption of the customers connected to their network, then compensated.
13 Thus, as a first step, the transmission network operators reimburse the distribution network operators for the total amount which the latter have paid to the beneficiaries of the CHP support measures.
14 The transmission network operators then calculate the total amount of the payments which they have made, respectively, to the beneficiaries of the CHP support measures and to the distribution network operators, as stated in paragraphs 11 and 13 of the present judgment. That total amount is then divided by the total electricity consumption.
15 The result of that calculation represents the average charge per kilowatt hour (kWh) of electricity for the measures at issue. The distribution network operators are required to pay transmission network operators an amount corresponding to that average charge for each kWh of electricity which they have distributed to end customers (‘the KWKG surcharge’).
16 The amount of the KWKG surcharge is calculated each year by the transmission network operators according to the methodology laid down in the KWKG 2020 and under the supervision of the BAFA and the BNetzA. It is expressed as a uniform price per kWh of electricity consumed, subject to the reduced rate from which certain categories of users benefit.
17 Second, the network operators are entitled, but are not required by law, to pass on the KWKG surcharge when calculating the network charges which they levy on their customers for each kWh of electricity supplied in Germany by the electricity network. By way of derogation, the transmission network operators are entitled to levy a reduced KWKG surcharge on large energy consumers such as hydrogen producers.
18 The KWKG 2020 establishes an annual budgetary limit of EUR 1.8 billion for the financing of the measures at issue and therefore for the total KWKG surcharge.
The decision at issue
19 On 3 June 2021, the Commission adopted the decision at issue.
20 The Commission classified the measures at issue as State aid within the meaning of Article 107(1) TFEU and found, inter alia, that they were financed through State resources. In particular, in recitals 220 and 221 of that decision, the Commission concluded that the CHP support measures were financed from the proceeds of a de jure compulsory levy imposed by the State, which were managed and apportioned in accordance with the provisions of the legislation. The Commission also considered that the measure relating to the reduction of the KWKG surcharge for hydrogen producers constituted a renouncement of State resources.
21 The Commission nevertheless found that the measures at issue were compatible with the internal market under Article 107(3)(c) TFEU and therefore decided not to raise objections.
The action before the General Court and the judgment under appeal
22 By application lodged at the Registry of the General Court on 9 July 2021, the Federal Republic of Germany brought an action for annulment of the decision at issue in so far as, in that decision, it is stated that the measures at issue constitute State aid. In support of that action, the Federal Republic of Germany raised a single plea in law, alleging an incorrect interpretation and an incorrect application of Article 107(1) TFEU, on the ground that the Commission had found that the undertakings concerned by the measures at issue benefited from aid granted through State resources.
23 In paragraph 36 of the judgment under appeal, the General Court, relying on the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1, paragraphs 38, 39 and 42), held that, first, funds financed by a levy or other compulsory surcharges under national legislation and managed and apportioned in accordance with that legislation, and, second, sums that constantly remain under public control, and therefore available to the competent national authorities, could be categorised as State resources within the meaning of Article 107(1) TFEU, those two criteria constituting alternative criteria of the concept of ‘State resources’ within the meaning of Article 107(1) TFEU.
24 As a first step, the General Court analysed, in paragraphs 41 to 118 of the judgment under appeal, whether the CHP support measures were financed through State resources and then went on to examine, in paragraphs 119 to 126 of that judgment, whether the reduction of the KWKG surcharge for hydrogen producers was financed through such resources.
25 As regards the CHP support measures, first of all, the General Court examined, in paragraphs 56 to 90 of the judgment under appeal, whether the KWKG support or the KWKG surcharge constituted a levy or another compulsory surcharge, within the meaning of the first of the criteria referred to in paragraph 23 of the present judgment. Next, in paragraphs 91 to 100 of the judgment under appeal, the General Court examined whether the amount of the KWKG support or of the KWKG surcharge remained under constant public control, within the meaning of the second criterion. Lastly, in paragraphs 101 to 117 of that judgment, the General Court rejected the Commission’s arguments relating to the application, in the present case, of the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160).
26 In the first place, as regards the first of those criteria, in paragraph 57 of the judgment under appeal, the General Court recalled the case-law according to which funds must be regarded as ‘State resources’ within the meaning of Article 107(1) TFEU if they derive from compulsory contributions imposed by the legislation of the Member State concerned and are managed and apportioned in accordance with that legislation.
27 Applying that case-law in the present case, the General Court, first of all, found, in paragraph 67 of the judgment under appeal, inter alia, that the compulsory payments made by the network operators to the beneficiaries of the CHP support measures, namely the payments which took place at a stage which the General Court identified as being the ‘first level’ of the electricity supply chain, concerned only the allocation of funds in accordance with the law in so far as those operators were required by law to grant financial support to those beneficiaries. However, the General Court found that those payments did not give any indication of the origin of the funds used by the network operators. According to the General Court, to consider that those payments constitute a levy or another compulsory surcharge would amount to considering that the financing of the CHP support measures is no different from the grant of the funds to the beneficiaries of those measures.
28 Next, in paragraphs 68 to 70 of that judgment, the General Court distinguished the situation in the present case, in which the network operators are under no legal obligation to pass on the KWKG surcharge to their downstream customers, namely at a stage which it identified as being the ‘second level’ of the electricity supply chain, from the situation referred to in the case-law on which the Commission had relied in order to argue that the funds used by the network operators to fulfil their payment obligations to the beneficiaries of the CHP support measures had a State origin.
29 In addition, in paragraphs 71 and 72 of that judgment, the General Court held that the Commission had not explained at what time and by whom the management of the funds was carried out.
30 Lastly, the General Court held, in paragraphs 73 to 77 of that judgment, that the possibility for network operators to have their customers to bear the burden of the CHP support measures was sufficient to preclude those operators from being the ‘ultimate debtors of that burden’ and, consequently, from being subject to a compulsory contribution in law.
31 In the second place, as regards the second of the criteria referred to in paragraph 23 of the present judgment, namely the constant public control of the sums in question, the General Court found, in paragraphs 93 and 94 of the judgment under appeal, that the Commission had not verified in the decision at issue whether that criterion was satisfied, but that such a circumstance did not constitute an error of law, since the two criteria in question were alternatives. In any event, in paragraph 98 of that judgment, the General Court held that that second criterion was not met in the present case.
32 In the third place, the General Court held, in paragraphs 101 to 117 of the judgment under appeal, that the Commission had been wrong to exclude, in the present case, the application of the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), by relying on the contention that the CHP support measures did not constitute a ‘mere price regulation’ within the meaning of that judgment.
33 Having concluded that the CHP support measures were not financed by State resources, in paragraphs 119 to 126 of the judgment under appeal, the General Court held that the reduction of the KWKG surcharge for hydrogen producers could also not amount to a renouncement of State resources.
34 On the basis of that reasoning, the General Court upheld the Federal Republic of Germany’s single plea in law and annulled the decision at issue.
Forms of order sought by the parties
35 By its appeal, the Commission claims that the Court should:
– set aside the judgment under appeal;
– dismiss the action at first instance as unfounded;
– in the alternative:
– set aside the judgment under appeal in so far as it concerns the measures referred to in recital 198(a) to (d) of the decision at issue, namely the CHP support measures;
– dismiss the action at first instance as unfounded; and
– order the Federal Republic of Germany to pay the costs of the proceedings at first instance and on appeal.
36 The Federal Republic of Germany contends that the Court should:
– dismiss the appeal; and
– order the Commission to pay the costs.
The appeal
37 In support of its appeal, the Commission relies on a single ground of appeal, alleging that the General Court erred in law in its interpretation of the concept of ‘State resources’, within the meaning of Article 107(1) TFEU, and in the legal characterisation of the facts.
38 That ground of appeal consists of two parts; the first alleges an error of law as regards the assessment of the financial burden of the CHP support measures, and the second alleges a disregard of the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160).
The first part of the single ground of appeal
Arguments of the parties
39 By the first part of the single ground of appeal, the Commission submits that the General Court erred in law in holding that the financial burden of the CHP support measures that was borne by the distribution network operators did not constitute a levy or other compulsory surcharge within the meaning of the case-law of the Court of Justice and that, therefore, State resources were not mobilised in the present case.
40 It submits that the General Court relied, in that regard, on three assessments, all of which are vitiated by an error of law.
41 In the first place, according to the Commission, the General Court held, in paragraphs 65 to 70 and 89 of the judgment under appeal, that, in order to establish the existence of State resources, it was necessary not to confuse the use of funds with their origin. Thus, the person liable for payment of a compulsory surcharge must be distinguished from the person responsible for payment of the aid, who, on that basis, pays to the beneficiary the amounts corresponding to such a surcharge. Since, in the present case, a single person has the status of both of the abovementioned persons, given that each distribution network operator is liable for payment of the KWKG surcharge and is responsible for paying the KWKG support to the beneficiaries of the CHP support measures, the General Court found that were no State resources.
42 By contrast, the Commission takes the view that there is nothing in Article 107(1) TFEU or in the case-law on which the General Court relied that allows a requirement that there be a triangular relationship between the person liable to pay the compulsory surcharge, the person responsible for granting the aid and the beneficiary of that aid. The Commission argues that only the existence of a compulsory surcharge is decisive.
43 In the second place, the Commission submits that the General Court held, in paragraphs 71, 72 and 88 of the judgment under appeal, that the Commission had failed to demonstrate that the funds generated by the KWKG surcharge were collected and managed in accordance with the national legislation. The General Court thereby considers there to be a condition that is additional to that of the existence of a compulsory surcharge.
44 The Commission, however, takes the view that it is not necessary for other criteria to be met, such as the management and apportionment of funds in accordance with national legislation, since the mere fact that there is a levy or a compulsory surcharge is sufficient to establish the existence of State resources, and a levy may also be charged by private entities. The Commission argues that, in the present case, what is at issue is a payment obligation unilaterally imposed by law on a specific category of persons and, therefore, a levy or a compulsory surcharge.
45 The reference, in paragraph 35 of the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1), to the fact that the amounts ‘are managed and apportioned in accordance with legislation’ is linked to the need to distinguish the situation at issue in the case which gave rise to that judgment from the situations at issue in the cases which gave rise to the judgments of 15 July 2004, Pearle and Others (C‑345/02, EU:C:2004:448), and of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE (C‑677/11, EU:C:2013:348), in which the public authorities merely made compulsory a levy that was established and managed by an association governed by private law for a group of legal entities also governed by private law. Those situations are not comparable to that of the present case, since, according to the Commission, it was the German State which introduced the KWKG support and which took all the necessary measures to ‘manage and apportion’ the corresponding amounts in accordance with German legislation. By taking the opposite view, the General Court also erred in its legal characterisation of the facts.
46 In the alternative, the Commission adds that, in any event, those first two assessments carried out by the General Court are based on another error, made in paragraphs 71 and 72 of the judgment under appeal, in that the General Court wrongly held that the mechanism for apportioning the financial burden between network operators could not be regarded as a ‘management of the funds’ on the ground that that mechanism merely put in place a procedure to offset that burden between network operators. In reality, first, the financial burden on the distribution network operators arose not from payment of the KWKG support, for which they were reimbursed by the transmission network operators, but from the payment of the KWKG surcharge which the distribution network operators had to pay to the transmission network operators. Second, the General Court disregarded the role of the BAFA and the BNetzA in the selection of the beneficiaries of the CHP support measures and the setting of the amount of the payments pursuant to the law. Such a mechanism therefore allows the financial burden relating to those measures to be ‘managed and apportioned’.
47 In the third place, the Commission observes that the General Court held, in paragraphs 73 to 76 of the judgment under appeal, that the Commission had not demonstrated that the distribution network operators were actually subject to a compulsory surcharge, since they had had the opportunity to pass on the KWKG surcharge to their customers.
48 According to the Commission, the mere possibility of passing on the additional costs to third parties is ineffective for the purpose of establishing the existence of State resources, as follows, in its view, from the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268, paragraphs 65 to 71).
49 The Federal Republic of Germany considers that all the arguments in support of the first part of the single ground of appeal should be rejected.
Findings of the Court
50 According to settled case-law, classification as ‘State aid’ within the meaning of Article 107(1) TFEU requires four conditions to be satisfied, namely, that there be intervention by the State or ‘through State resources’, that the intervention be liable to affect trade between Member States, that that intervention confer a selective advantage on the beneficiary and that the same intervention distort or threaten to distort competition (judgment of 26 September 2024, Covestro Deutschland and Germany v Commission, C‑790/21 P and C‑791/21 P, EU:C:2024:792, paragraph 146 and the case-law cited).
51 As regards the first of those conditions, it is also settled case-law that a measure may be classified as an intervention by the State or as aid granted ‘through State resources’ if, first, the measure is granted directly or indirectly through those resources and, second, the measure is imputable to a Member State (judgment of 26 September 2024, Covestro Deutschland and Germany v Commission, C‑790/21 P and C‑791/21 P, EU:C:2024:792, paragraph 147 and the case-law cited).
52 As regards, more specifically, the condition that the advantage be granted ‘through State resources’, the Court has, in its case-law, identified two criteria for establishing that the funds by means of which a tariff advantage is granted under national legislation constitute ‘State resources’ within the meaning of Article 107(1) TFEU (judgment of 26 September 2024, Covestro Deutschland and Germany v Commission, C‑790/21 P and C‑791/21 P, EU:C:2024:792, paragraph 148 and the case-law cited).
53 Thus, in the first place, funds financed by a charge or other compulsory surcharges under national legislation and managed and apportioned in accordance with that legislation constitute ‘State resources’ within the meaning of Article 107(1) TFEU (judgment of 26 September 2024, Covestro Deutschland and Germany v Commission, C‑790/21 P and C‑791/21 P, EU:C:2024:792, paragraph 149 and the case-law cited). In that regard, the fact that the financial burden of such a surcharge is borne in practice by a defined category of persons is not sufficient to establish that the funds resulting from that surcharge are in the nature of ‘State resources’ within the meaning of Article 107(1) TFEU. It is also necessary for that surcharge to be compulsory under national law (judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 36).
54 In the second place, the fact that sums constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as ‘State resources’ within the meaning of that provision (judgment of 26 September 2024, Covestro Deutschland and Germany v Commission, C‑790/21 P and C‑791/21 P, EU:C:2024:792, paragraph 150 and the case-law cited).
55 The criteria referred to in paragraphs 53 and 54 of the present judgment constitute alternative criteria for establishing that a measure is granted ‘through State resources’ within the meaning of Article 107(1) TFEU (judgment of 26 September 2024, Covestro Deutschland and Germany v Commission, C‑790/21 P and C‑791/21 P, EU:C:2024:792, paragraph 151 and the case-law cited).
56 It follows that the nature of the resources as State resources, for the purposes of Article 107(1) TFEU, may be established by means of two alternative criteria, one relating to the existence of a compulsory charge on end consumers or customers and the other to public control over the administration of the scheme and, in particular, over funds or the administrators of those funds (see, to that effect, judgment of 26 September 2024, Covestro Deutschland and Germany v Commission, C‑790/21 P and C‑791/21 P, EU:C:2024:792, paragraph 152).
57 It follows from paragraph 93 of the judgment under appeal, which is not challenged in the appeal, that, in the decision at issue, the Commission merely applied the first of those two criteria. It is true that, after examining, in paragraphs 56 to 90 of the judgment under appeal, that first criterion, the General Court nevertheless examined, in paragraphs 91 to 100 of that judgment, whether the second of the criteria referred to in paragraph 56 of the present judgment was satisfied in the present case, but found that neither of those criteria was satisfied. That said, since the first part of the single ground of appeal relates only to the analysis carried out by the General Court in paragraphs 65 to 89 of the judgment under appeal, only the first of those criteria is at issue in that first part of the single ground of appeal.
58 As regards the line of argument put forward in support of that part, in the first place, in so far as the Commission claims, in essence, by its first complaint, that the General Court erred in law, in paragraphs 65 to 70 and 89 of the judgment under appeal, in finding that the identification of State resources requires the existence of a ‘triangular relationship’ between the person liable for the compulsory surcharge, the person responsible for granting the aid and the beneficiary of that aid, it is sufficient to note that, although those terms were used by the Federal Republic of Germany in its action at first instance, as follows from paragraph 47 of that judgment, they were not reproduced by the General Court in those contested paragraphs of the judgment under appeal. Consequently, that complaint has no factual basis.
59 That said, by that complaint, the Commission also submits that the existence of a compulsory surcharge is decisive for the purposes of identifying ‘State resources’, within the meaning of Article 107(1) TFEU, and complains that the General Court held that the compulsory allocation of funds held by one category of private economic operators to another category of private economic operators is not sufficient to establish the commitment of State resources.
60 In that regard, it should be noted that, in paragraph 64 of the judgment under appeal, the General Court was fully entitled to recall the case-law set out in paragraph 53 of the present judgment, according to which, in order for funds to be regarded as ‘State resources’ within the meaning of Article 107(1) TFEU, those funds must derive, in particular, from charges or from other compulsory surcharges under national legislation.
61 Applying that principle to the present case, the General Court held, in paragraphs 67 and 70 of the judgment under appeal, that the Commission had been wrong to conclude that the obligation on the network operators to pay the KWKG support to the beneficiaries of the CHP support measures was sufficient to establish the existence of a levy or of another compulsory surcharge such as to establish the commitment of State resources. The General Court stated that that circumstance makes it possible only to establish the allocation of funds in accordance with the law, but gives no indication of the origin of the funds used by the network operators in order to comply with their obligations. In order to support that finding, the General Court referred, in paragraphs 68 and 69 of that judgment, to the criterion of the passing on, to a third party, of the financial burden arising from the allocation of the funds so as to identify the origin of the funds concerned and, consequently, the possible commitment of State resources.
62 The Court of Justice has already held that it is not sufficient, in order to establish the commitment of State resources, that the network operators pass on in the electricity sale price to their end customers the additional costs caused by their obligation to purchase electricity generated from renewable energy sources at the statutory rates, where that offsetting is the result only of a practice and not of a legal obligation (see, to that effect, judgments of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraphs 70 and 71, and of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 37).
63 Moreover, the existence of a compulsory charge borne by the end consumers of electricity at the ‘second level’ of the electricity supply chain which provides the funds used to grant support at the ‘first level’ of that chain has, in essence, as the Advocate General observed in points 66 and 67 of his Opinion, been consistently taken into consideration in the case-law and, in particular, in the judgments of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413, paragraph 66); of 19 December 2013, Association Vent De Colère! and Others (C‑262/12, EU:C:2013:851, paragraphs 22 to 24); of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268, paragraphs 64 to 71); of 15 May 2019, Achema and Others (C‑706/17, EU:C:2019:407, paragraphs 57 and 64); of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1, paragraphs 30, 36 and 37); of 7 March 2024, Fallimento Esperia and GSE (C‑558/22, EU:C:2024:209, paragraphs 76 and 77); of 26 September 2024, Covestro Deutschland and Germany v Commission (C‑790/21 P and C‑791/21 P, EU:C:2024:792, paragraph 178); and of 26 September 2024, WEPA Hygieneprodukte and Others v Commission (C‑795/21 P and C‑796/21 P, EU:C:2024:807, paragraph 124).
64 The case-law referred to in paragraphs 62 and 63 of the present judgment reflects the fact that it is necessary, in order to be able to classify the support granted to the beneficiary as State aid, that that support is borne by the State budget, which presupposes the existence of a sufficiently direct link between, on the one hand, that support and, on the other hand, a reduction of that budget, or a sufficiently concrete economic risk of burdens on it. From that perspective, the Court has also held that, in the case of entities separate from the public authority that are subject to an obligation to purchase electricity, the decisive factor, in that regard, lies in the fact that such entities are appointed by the State to manage a State resource, and not that they are merely bound by an obligation to purchase by means of their own financial resources (see, to that effect, judgment of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraphs 58 to 60 and the case-law cited).
65 It follows that, in the absence of any compulsory passing on, to end customers, of the financial burden corresponding to an additional charge payable by the network operators on the sale price of electricity, it cannot be found that the funds financing that additional charge come from a levy or from another compulsory surcharge and that they therefore constitute State resources within the meaning of Article 107(1) TFEU.
66 In the present case, it follows from the findings made by the General Court in paragraph 60 of the judgment under appeal, which the Commission does not dispute, that the distribution network operators, while being required to pay the KWKG support to the beneficiaries of the measures at issue, are indeed entitled to pass on the financial burden resulting from that support, corresponding to the KWKG surcharge, to their end customers, but are not legally obliged to do so. In those circumstances, the General Court did not err in law in finding that the Commission had not demonstrated that the CHP support measures involved the commitment of State resources within the meaning of Article 107(1) TFEU.
67 Consequently, the arguments in support of the first complaint in the first part of the Commission’s single ground of appeal, those arguments being directed against paragraphs 65 to 70 and 89 of the judgment under appeal, are unfounded.
68 In the second place, as regards the second complaint raised by the Commission, directed against paragraphs 71, 72 and 88 of the judgment under appeal, in which, in essence, the General Court held that it is not sufficient, in order for funds to constitute State resources, that they be financed by a levy or other compulsory surcharges under national legislation, since those funds must also be managed and apportioned in accordance with that legislation, it is sufficient to note that that complaint is ineffective.
69 In accordance with the case-law referred to in paragraph 53 of the present judgment, to which the General Court was fully entitled to refer in paragraphs 57 and 64 of the judgment under appeal, the criterion of the management and apportionment of the funds concerned in accordance with national legislation is in addition to the criterion that those funds must originate from a levy or from other compulsory surcharges. In that regard, the Commission has misread paragraph 35 of the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1), when it submits that the reference to the first of those criteria is intended solely to distinguish the situation at issue in that judgment from the situations which were at issue in the judgments referred to in paragraph 45 of the present judgment, since no limitation to that effect is apparent from that judgment of 12 January 2023. That criterion was, moreover, established as an autonomous criterion for the characterisation of the commitment of State resources, in addition to the criterion of the origin of the funds concerned, from the time of the judgment of 2 July 1974, Italy v Commission (173/73, EU:C:1974:71, paragraph 35).
70 It follows from paragraphs 58 to 66 of the present judgment that the General Court did not err in law when it considered that the funds financing the measures at issue did not constitute a compulsory surcharge.
71 Consequently, even if the General Court had erred in law in its interpretation of the criterion that the funds financed by a compulsory surcharge must be managed and apportioned in accordance with national legislation, such an error would have no effect on the validity of the finding that there was no such surcharge in the present case.
72 For the same reasons, the line of argument raised in the alternative by the Commission and set out in paragraph 46 of the present judgment, to the effect that, in essence, the General Court misapplied the criterion requiring that the funds be managed and apportioned in accordance with national legislation, is also ineffective.
73 In the third place, as regards the third complaint relied on by the Commission, concerning paragraphs 73 to 76 of the judgment under appeal, it is sufficient to note that it follows from the analysis of the first complaint in the present part of the single ground of appeal that the compulsory passing on of the financial burden of the CHP support measures was indeed relevant for assessing the existence of State resources. In particular, it follows from paragraph 62 of the present judgment that the Commission has misread the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268) when it maintains that the Court held, in that judgment, that the mere possibility of passing on the additional costs to third parties has no bearing on whether State resources are committed. That complaint is, therefore, unfounded.
74 In the light of the foregoing, the first part of the single ground of appeal must be rejected.
The second part of the single ground of appeal
Arguments of the parties
75 By the second part of the single ground of appeal, raised in the alternative, the Commission submits that, in paragraphs 101 to 117 of the judgment under appeal, the General Court disregarded the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160).
76 First of all, the Commission takes the view that, by that case-law, the Court of Justice merely considers that only cases in which the State intervenes by regulating market prices, for example by fixing minimum or regulated prices or minimum purchase volumes, do not give rise to the commitment of State resources. In the present case, the KWKG 2020 does not, the Commission argues, provide for such price regulation. The network operators are required to pay the KWKG support to the beneficiaries of the CHP support measures linked to their network, irrespective of any purchase of electricity by those beneficiaries. Thus, the State imposes direct payment obligations between private parties, without those obligations being based on any contractual relationship.
77 Next, according to the Commission, a broad interpretation of the exception referred to in that case-law would amount to allowing a Member State, which introduces payment obligations on private economic operators, to promote any industrial sector or any particular undertaking.
78 Lastly, the Commission refers to the case-law resulting, inter alia, from the judgment of 11 August 1995, Dubois and Général cargo services (C‑16/94, EU:C:1995:268, paragraphs 15 and 21), concerning the concept of a ‘charge’ under Articles 30 and 110 TFEU. It considers that it can be inferred from this that the decisive factor is whether the payment constitutes consideration for a particular service that is actually and individually provided to the economic operator, in which case that payment does not fall within the concept of a ‘charge’, or whether that payment serves to finance the performance of a public service task, in which case it does fall within that concept. In such a context, the private origin of the resources, on which the General Court relies, is irrelevant, since any form of levy involves having recourse to private resources. In that regard, the Commission also relies on the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), which, it argues, was misinterpreted by the General Court in paragraph 111 of the judgment under appeal, and on the judgment of 7 March 2024, Fallimento Esperia and GSE (C‑558/22, EU:C:2024:209), which confirms that the situation of a ‘purchase obligation’ must be distinguished from the situation in which the State imposes a payment obligation, which is in fact a compulsory surcharge.
79 The Federal Republic of Germany disputes that line of argument.
Findings of the Court
80 In order to rule on that part of the single ground of appeal, it should be recalled that, in paragraph 59 of the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), the Court held that the obligation imposed on private electricity supply undertakings to purchase electricity produced from renewable energy sources at fixed minimum prices did not involve any direct or indirect transfer of State resources to undertakings producing that type of electricity. In paragraphs 60 and 61 of that judgment, the Court inferred, in essence, that, in the absence of such a transfer of State resources, the fact that the purchase obligation is imposed by law and confers an undeniable advantage on certain undertakings is not capable of conferring upon it the character of State aid within the meaning of Article 107(1) TFEU.
81 Thus, it is sufficient to note, first of all, that, contrary to what the Commission claims, the General Court was fully entitled to hold, in essence, in paragraphs 105 to 108 of the judgment under appeal, that the Court of Justice has not considered that only a price regulation imposed by the legislation of a Member State cannot be classified as State aid. In fact, the Court of Justice merely stated that the imposition, on private electricity supply undertakings, of the obligation to purchase electricity produced from renewable energy sources at fixed minimum prices does not constitute State aid where that obligation does not entail any direct or indirect transfer of State resources to undertakings producing that type of electricity.
82 In the case which gave rise to the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), the payment resulting from the difference between the market price and the minimum price imposed by law was not financed by State resources, but was covered by the financial resources of the electricity supply undertakings in question, that burden being spread only between those undertakings and the upstream private electricity network operators.
83 It follows from the analysis of the first part of the present single ground of appeal that the General Court did not err in law in finding that the same is true in the present case.
84 It follows that the General Court also did not err in law in finding, in paragraph 112 of the judgment under appeal, that, in order to rule out the application of the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), the Commission was required to establish, irrespective of whether or not the CHP support measures constituted a measure of ‘mere price regulation’, that the advantage for the beneficiaries of those measures was not granted by the network operators, which are private entities, through their own financial resources. Nor did the General Court err in concluding, in paragraph 114 of the judgment under appeal, that, since the Commission had failed to establish that one of the alternative criteria referred to in paragraphs 53 and 54 of the present judgment was satisfied, the network operators use their own financial resources to grant the sums provided for by the KWKG 2020 to the beneficiaries of the CHP support measures, for the purposes of the case-law resulting from the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160).
85 It follows, next, that the complaint relating to the need to interpret restrictively an alleged exception arising from that case-law is also unfounded. As already follows from paragraph 80 of the present judgment, in the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), the Court did not introduce an exception, but merely interpreted Article 107(1) TFEU and, in particular, the requirement, laid down by that provision, that, as recalled in paragraph 50 of the present judgment, classification as ‘State aid’ presupposes, inter alia, that there is an intervention by the State or ‘through State resources’.
86 In so far as the Commission considers that that interpretation would amount to allowing a Member State which introduces payment obligations on private economic operators to promote any industrial sector or any particular undertaking, it is sufficient to recall that, according to settled case-law, only advantages granted directly or indirectly through State resources are to be considered State aid within the meaning of Article 107(1) TFEU. The distinction made in that provision between ‘aid granted by a Member State’ and aid granted ‘through State resources’ does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid, but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State with a view to managing the aid (judgments of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 58, and of 27 January 2022, Fondul Proprietatea, C‑179/20, EU:C:2022:58, paragraph 91).
87 Lastly, as regards the relevance of the case-law on which the Commission relies, it should be noted, first, that, in the judgment of 11 August 1995, Dubois and Général cargo services (C‑16/94, EU:C:1995:268), the Court was asked not about the interpretation of Article 107 TFEU, but whether or not a charge imposed on goods due to the fact that they cross a border falls within the prohibition laid down in the articles of the EC Treaty that have been replaced by Articles 28 and 30 TFEU. Furthermore, although the Court held, in paragraph 21 of that judgment, that the latter provisions apply to a ‘transit charge’ designed to compensate a private undertaking for bearing costs arising from the performance of a public service task, in the present case neither the KWKG support nor the KWKG surcharge is intended, at the first level of the electricity supply chain, to compensate for the costs resulting from the performance of a public service task. Accordingly, the Commission cannot successfully rely on that judgment in order to establish that the General Court erred in law in finding that the Commission had not established that the CHP support measures were financed through State resources.
88 Second, as regards the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), it is sufficient to note that, as the Advocate General observed, in essence, in points 108 and 109 of his Opinion, that judgment does not contain any grounds to support a conclusion that only the existence of market price regulation in the context of a relationship involving consideration between individuals justifies a finding that there has been no commitment of State resources.
89 Third, the same is true of the judgment of 7 March 2024, Fallimento Esperia and GSE (C‑558/22, EU:C:2024:209). As follows from paragraphs 74 to 77 of that judgment, it was on the ground that an entity that could be assimilated to the State purchased the surplus green certificates at issue in the case which gave rise to that judgment, using the revenue from a tariff component that was imposed by national legislation on electricity consumers and paid, for the purposes of purchasing those certificates, to that entity, that the commitment of State resources could be established.
90 In the light of the foregoing, the second part of the single ground of appeal is also unfounded, with the result that the appeal must be dismissed in its entirety.
Costs
91 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
92 Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
93 Since the Federal Republic of Germany has applied for costs and the Commission has been unsuccessful, the Commission must be ordered to bear its own costs and to pay those incurred by the Federal Republic of Germany in the present appeal.
On those grounds, the Court (Fourth Chamber) hereby:
1. Dismisses the appeal;
2. Orders the European Commission to bear its own costs and to pay those incurred by the Federal Republic of Germany in the present appeal.
[Signatures]