Opinion of Advocate General Medina delivered on 9 November 2023.

• Jurisdiction: European Union
• Date: 09 November 2023
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 9 November 2023 (1)

Joined Cases C‑790/21 P and C‑791/21 P

Covestro Deutschland AG

v

European Commission (C‑790/21 P)

and

Federal Republic of Germany

v

Covestro Deutschland AG,

European Commission (C‑791/21 P)

(Appeal – State aid – Germany – State aid scheme in favour of certain large electricity consumers – Exemption from network charges in 2012 and 2013 – Decision declaring the aid scheme incompatible with the internal market and unlawful and ordering the recovery of the aid granted – Action for annulment – Time limit for bringing proceedings – Admissibility – Concept of aid – State resources – Parafiscal tax or other mandatory levies – State control over the funds)

1. The present Opinion is delivered in Joined Cases C‑790/21 P and C‑791/21 P. It should be read together with my three other Opinions in parallel appeals, (2) also delivered today, all of which concern the same State aid scheme. By its appeal in Case C‑790/21 P, Covestro Deutschland AG (‘Covestro’), a materials-manufacturing company, seeks to have the judgment of 6 October 2021, Covestro Deutschland v Commission (T‑745/18, EU:T:2021:644) (‘the judgment under appeal’) set aside. That judgment dismissed its action seeking annulment of European Commission Decision of 28 May 2018 on the aid scheme implemented by Germany for baseload consumers under Paragraph 19 StromNEV, (3) in respect of the years 2012 and 2013 (‘the decision at issue’). By its appeal in case C‑791/21 P, the Federal Republic of Germany (for the sake of simplicity, the Federal Republic of Germany will be referred to as ‘Germany’) seeks to have the judgment under appeal set aside. The Commission has brought a cross-appeal in both of the above cases, whereby it too seeks to have the judgment under appeal set aside.

I. Background to the dispute

2. The background to the dispute is set out in paragraphs 1 to 22 of the judgment under appeal. For the purposes of the present Opinion, it may be summarised as follows.

A. The system of network charges prior to the introduction of the measures at issue

3. Paragraph 21 of the Energiewirtschaftsgesetz (Law on the protection of the energy supply), as amended by the Gesetz zur Neuregelung energiewirtschaftlicher Vorschriften (Law on the revision of energy industry regulations) of 26 July 2011, (4) but prior to the amendments made by the Gesetz zur Weiterentwicklung des Strommarktes (Law on the development of the electricity market) of 26 July 2016, (5) provides, inter alia, that network charges must be reasonable, non-discriminatory, transparent and based on the costs of an efficient operation of the energy supply system.

4. Paragraph 17 of the Stromnetzentgeltverordnung (Federal Ordinance on Electricity Network Charges) of 25 July 2005, (6) defines the calculation method to be used by system operators in order to determine the general charges, which is based, inter alia, on the annual total network costs.

5. Paragraph 19 of StromNEV 2005 also provides for individual charges for categories of users whose consumption and load profiles are very different from those of other users (so-called ‘atypical users’), which take into account, in accordance with the principle of cost-reflective pricing, the contribution of those users to reducing or preventing an increase in network costs.

6. In that regard, Paragraph 19(2) of StromNEV 2005 introduces individual charges for the following two categories of atypical users: (i) users whose peak cost contribution may differ significantly from the simultaneous annual peak load of all other users connected to the same network level, that is to say, users who systematically consume electricity outside peak hours (‘anticyclic consumers’); and (ii) users whose annual electricity consumption represents at least 7 000 hours of use and more than 10 gigawatts/hour (‘baseload consumers’).

7. Until the entry into force of StromNEV, as amended by the EnWG 2011 (‘StromNEV 2011’), anti-cyclical and baseload consumers were subject to individual fees calculated according to the ‘physical-route method’ drawn up by the Bundesnetzagentur (Federal Network Agency, Germany; ‘BNetzA’). That method took account of the network costs generated by those consumers, with a minimum charge equivalent to 20% of the published general charges (‘the minimum charge’). The latter guaranteed a fee for the operation of the network to which those consumers were connected if the individual charges calculated according to the physical-route method were lower than or close to zero.

B. The measures at issue (exemption and surcharge)

8. Pursuant to the second and third sentences of Paragraph 19(2) of StromNEV 2011, which entered into force on 4 August 2011, with effect from 1 January 2011 (the date of the retroactive application of that provision), the system of individual network charges for baseload consumers was abolished and replaced by a full exemption from the obligation to pay network charges (‘the exemption at issue’). It was to be granted only once the competent regulatory authority (either the BNetzA or the regulatory authority of the Land concerned) had verified that the legal conditions were met. That exemption was borne by transmission or distribution system operators according to the network level to which the beneficiaries were connected. Individual network charges for non-peak consumers remained in place as well as their obligation to pay at least 20% of the published network charge.

9. In accordance with the sixth and seventh sentences of Paragraph 19(2) of StromNEV 2011, transmission system operators were obliged to reimburse downstream operators of electricity distribution networks (the distribution system operators) for lost revenues resulting from the exemption at issue and had to compensate each other for the costs entailed by the exemption, by means of financial compensation in accordance with Paragraph 9 of the Kraft-Wärme-Kopplungsgesetz (Law on the promotion of cogeneration of heat and electricity) of 19 March 2002, (7) with the result that each of them bore the same financial burden calculated according to the quantity of electricity which each supplied to the final consumers connected to its network.

10. From 2012 onwards, the decision of the BNetzA of 14 December 2011 (BK8-11-024; ‘the BNetzA decision of 2011’) established a financing mechanism. Under that mechanism, the distribution system operators collected from final consumers a surcharge (‘the surcharge at issue’), the amount of which was passed on to the transmission system operators to compensate them for the loss of revenue brought about by the exemption at issue.

11. The amount of the surcharge was determined each year, in advance, by the transmission system operators, on the basis of a methodology established by the BNetzA. The amount for 2012, the first year in which the system was implemented, was set directly by the BNetzA.

12. Those provisions did not apply to the costs of the exemption for 2011 and, therefore, each transmission and distribution system operator had to bear the losses relating to the exemption for that year.

C. The system of network charges subsequent to the measures at issue

13. During the administrative procedure before the Commission, which resulted in the decision at issue, the exemption at issue was first declared null and void by judicial decisions of the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany) of 8 May 2013 and of the Bundesgerichtshof (Federal Court of Justice, Germany) of 6 October 2015. That exemption was subsequently repealed, with effect from 1 January 2014, by the StromNEV, as amended by the Verordnung zur Änderung von Verordnungen auf dem Gebiet des Energiewirtschaftsrechts (Ordinance amending the Energy Regulations) of 14 August 2013. (8) The latter ordinance reintroduced the individual charges calculated according to the physical route method, with the application – instead of the minimum charge – of standard charges of 10, 15 and 20% of the general charges, based on electricity consumption (7 000, 7 500 and 8 000 hours of annual use of the network) (‘the standard charges’).

14. StromNEV 2013 introduced a transitional scheme, in force from 22 August 2013 and applicable retroactively to baseload consumers who had not yet received the exemption at issue for the years 2012 and 2013 (‘the transitional scheme’). Instead of the individual fees calculated in accordance with the physical route method and the minimum fee, that scheme provided exclusively for the application of the standard fees.

II. Legal analysis

15. In its two identical cross-appeals in Cases C‑790/21 P and C‑791/21 P, the Commission puts forward three grounds of appeal. The first two are, in essence, identical to the two grounds raised in the cross-appeals in Cases C‑792/21 P to C‑796/21 P and C‑800/21 P. In Case C‑790/21 P, Covestro relies on four grounds of appeal. In Case C‑791/21 P, Germany puts forward a single ground of appeal. However, as requested by the Court of Justice, the present Opinion will address only the first ground of the Commission’s cross-appeals (admissibility of an action for annulment) and Covestro’s third ground of appeal, which chimes with Germany’s single ground of appeal (in so far as these concern the condition relating to the existence of an intervention by means of ‘State resources’).

A. The first ground of the Commission’s cross-appeals: admissibility of an action for annulment

1. Main arguments of the parties

16. The Commission submits that the General Court erred in law, in paragraphs 37 to 44 of the judgment under appeal, by adopting a broad interpretation of the concept of ‘publication’ within the meaning of the sixth paragraph of Article 263 TFEU. In the first place, according to the Commission, the General Court’s interpretation is contrary to the case-law of the Court of Justice...