Opinion of Advocate General Medina delivered on 9 November 2023.

• Jurisdiction: European Union
• Celex Number: 62021CC0792
• ECLI: ECLI:EU:C:2023:853
• 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‑792/21 P and C‑793/21 P

AZ

v

European Commission (C‑792/21 P)

and

Federal Republic of Germany

v

AZ,

European Commission (C‑793/21 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‑792/21 P and C‑793/21 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‑792/21 P, AZ, a company producing custom analogue and mixed-signal integrated circuits for industry, seeks to have the judgment of 6 October 2021, AZ v Commission (T‑196/19, EU:T:2021:646) (‘the judgment under appeal’) set aside. (3) That judgment dismissed its action seeking annulment of European Commission Decision of 28 May 2018 on aid scheme implemented by Germany for baseload consumers under Paragraph 19 StromNEV, (4) in respect of the years 2012 and 2013 (‘the decision at issue’). By its appeal in Case C‑793/21 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 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. Given that the background is identical to that which I summarised in the parallel Opinion in Joined Cases C‑790/21 P and C‑791/21 P (‘the parallel Opinion’), it is sufficient to cross-refer to points 3 to 14 of the parallel Opinion, and the Opinions in these parallel cases should be read together.

II. Legal analysis

3. In its two identical cross-appeals in Cases C‑792/21 P and C‑793/21 P, the Commission puts forward two grounds of appeal. The two grounds of the cross-appeal are identical to the first two grounds of the cross-appeals in Cases C‑790/21 P and C‑791/21 P. In Case C‑792/21 P, AZ puts forward four grounds of appeal. In Case C‑793/21 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 AZ’s third ground of the 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

4. The Commission submits that the General Court erred in law, in paragraphs 36 to 43 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, in which the latter established a parallel between the sixth paragraph of Article 263 TFEU and Article 297 TFEU. In the Commission’s submission, it is clear from that case-law that publication is the starting point of the period prescribed for instituting proceedings only if it is a precondition for the entry into force of the measure in question, and if it is provided for by the Treaty itself. In the second place, as regards, more specifically, the publication in the Official Journal of the European Union (‘Official Journal’) of a Commission decision closing a formal investigation procedure, that does not constitute a ‘publication’ within the meaning of the second subparagraph of Article 297(2) TFEU. It does not therefore constitute the starting point of the period prescribed for instituting proceedings. In the third place, the Commission puts forward a series of arguments which, in its view, support its interpretation of the sixth paragraph of Article 263 TFEU, such as the scheme of that provision, the principle of equality of arms or the mandatory nature of the time limits for bringing proceedings.

5. Germany and AZ submit, in essence, that the General Court’s interpretation of the concept of ‘publication’, within the meaning of the sixth paragraph of Article 263 TFEU, is not vitiated by any error of law.

2. Assessment

6. Given that these cross-appeals are identical, word for word, to the ones I have already addressed in the parallel Opinion, I shall limit myself to cross-referring to that Opinion. Indeed, the Opinions should be read together.

7. The Commission argues that, contrary to what the General Court ruled in the judgment under appeal, it is the date on which the decision at issue came to the knowledge of the State aid beneficiary which must be taken into account for the purposes of calculating the time limit for bringing an action for annulment, and not the date of its publication in the Official Journal. The Commission therefore submits that the General Court should have declared AZ’s action inadmissible, since it was out of time.

8. As I explain in points 20 to 30 of the parallel Opinion, I propose that the Commission’s interpretation should be rejected, as it is supported neither by the wording of the sixth paragraph of Article 263 TFEU, nor by the settled case-law of the Court, nor by the purpose of that provision.

9. Furthermore, as has been pointed out in point 31 of the parallel Opinion, the Commission’s interpretation would have the effect of limiting the effective legal protection of the aid beneficiary.

10. Finally, in points 32 to 35 of the parallel Opinion, I explain that the Commission’s argument that, in the present case, AZ – which received the decision at issue in the context of the national procedure for the recovery of the aid – brought its action for annulment before the publication of the decision at issue in the Official Journal, does not alter my conclusion.

11. It follows, in my view, that the General Court rightly held that the inadmissibility raised by the Commission at first instance had to be rejected and that the Commission’s cross-appeals should be dismissed as unfounded.

B. AZ’s third ground of appeal and the single ground of appeal raised by Germany: infringement of Article 107(1) TFEU concerning State resources

12. It is not only the cross-appeals, but also the appeals brought by Covestro (Case C‑790/21 P) and AZ (Case C‑792/21 P) that are, in essence, identical. The appeals brought by Germany (Case C‑791/21 P and Case C‑793/21 P) are identical. Therefore, the Opinions in these parallel cases should be read together.

13. As mentioned in point 3 of the present Opinion, the Court has requested that the present Opinion address AZ’s third ground of appeal only in so far as it concerns the condition relating to the existence of an intervention by means of ‘State resources’. That, in turn, chimes with Germany’s single ground of appeal, which deals solely with that issue.

14. AZ’s third ground of appeal (Case C‑792/21 P) consists of three branches in relation to ‘State resources’: (i) it complains that the General Court applied in its assessment legally erroneous criteria for a levy under State aid law and for State control; (ii) it argues that the General Court relied on a distorted presentation of national law and erred in law by regarding the surcharge at issue as a levy under State aid law; and (iii) it submits that the General Court erred in law by ruling that there was State control over the surcharge at issue, because that court presupposed an obligation to levy and full coverage of costs and took the view that the Bundesnetzagentur (the ‘BNetzA’, Federal Network Agency, Germany) determined the amount of the surcharge.

15. Germany’s single ground of appeal (C‑793/21 P) is based on three arguments: (i) the General Court erred in law in finding that the existence of a mandatory charge on consumers or end users and the State control over the funds or over the administrators of those funds were alternative criteria; (ii) the General Court erred in law in finding, in the context of the assessment whether there is a ‘mandatory charge on consumers or end users’, that the relationship between an electricity supplier and final consumers was irrelevant; and (iii) the General Court erred in law by holding that the exclusive use of the network charges collected did not rule out that the State could dispose of those funds.

16. The Commission contends that AZ’s third ground of appeal and Germany’s single ground of appeal must be rejected as unfounded.

17. Given that the various arguments concerning State resources raised by AZ in the third ground of appeal (Case C‑792/21 P) and by Germany in the single ground of appeal (Case C‑793/21 P) significantly overlap, it is appropriate to address them together and in the order and following the structure of the judgment under appeal. As a result, it is first necessary to deal with the alternative nature of the criteria; next, the classification of the surcharge at issue (5) as a ‘tax’; and, finally, the existence of State control over the resources generated by the surcharge at issue.

1. First series of arguments raised by AZ and Germany (two factors which together form an alternative)

(a) Main arguments of the parties

18. AZ argues, more generally, that the General Court applied legally incorrect State aid criteria when it...