AEM SpA (C-128/03) and AEM Torino SpA (C-129/03) v Autorità per l'energia elettrica e per il gas and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: von Bahr
• ECLI: ECLI:EU:C:2005:224
• Docket Number: C-129/03,C-128/03
• Date: 14 April 2005
• Procedure Type: Reference for a preliminary ruling

Joined Cases C-128/03 and C-129/03

AEM SpA and AEM Torino SpA

v

Autorità per l’energia elettrica e per il gas and Others

(Reference for a preliminary ruling from the Consiglio di Stato)

(Internal market in electricity – Increased charge for access to and use of the national electricity transmission system – State aid – Directive 96/92/EC – Access to the system – Principle of non-discrimination)

Opinion of Advocate General Stix-Hackl delivered on 28 October 2004

Judgment of the Court (Third Chamber), 14 April 2005.

Summary of the Judgment

1. State aid — Meaning — Measures creating different treatment of undertakings in relation to charges connected with the nature and general scheme of the system of charges in question — Excluded

(Art. 87 EC)

2. State aid — Meaning — Method by which aid is financed — Included — Condition — Method of financing forming an integral part of the aid measure — Hypothecation of special tax to aid

3. Approximation of laws — Measures directed at the establishment and functioning of the internal market in electricity — Directive 96/92 — Rule of non-discriminatory access to the national electricity transmission system — Adoption by a Member State of a measure imposing an increased charge for a transitional period only on certain electricity generation and distribution undertakings for access to and use of that system to offset the advantage created for those undertakings by the liberalisation of the market — Whether permissible

(European Parliament and Council Directive 96/92, Arts 7(5), 8(2), and 16)

1. The concept of State aid within the meaning of Article 87(1) EC is wider than that of a subsidy because it embraces not only positive benefits, such as the subsidies themselves, but also measures which, in various forms, mitigate the normal burdens on the budget of an undertaking. However, the concept of aid does not encompass measures creating different treatment of undertakings in relation to charges where that difference is attributable to the nature and general scheme of the system of charges in question. That is the case with a measure which imposes an increased charge for a transitional period for access to and use of the national electricity transmission system only on undertakings generating and distributing electricity from hydroelectric or geothermal installations to offset the advantage created for those undertakings, during the transitional period, by the liberalisation of the market in electricity following the implementation of Directive 96/92 concerning common rules for the internal market in electricity. That different treatment is not therefore per se State aid within the meaning of Article 87 EC.

(see paras 38-39, 43, operative part 1)

2. The method by which an aid is financed may render the entire aid scheme incompatible with the common market. Therefore, the aid cannot be considered separately from the effects of its method of financing. On the contrary, consideration of an aid measure by the Commission must necessarily also take into account the method of financing the aid where that method forms an integral part of the measure. However, for a special tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid measure under the relevant national rules, in the sense that the revenue from the tax is necessarily allocated for the financing of the aid. It is only in the event of such hypothecation that the revenue from the special tax has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of the aid with the common market. It follows that if there is hypothecation of the increased charge for access to and use of the national electricity transmission system to a national scheme of aid, in the sense that the revenue from the increase is necessarily allocated for the financing of the aid, that increase is an integral part of that scheme and must therefore be considered together with the latter.

(see paras 45-47, operative part 1)

3. Article 7(5), Article 8(2), and Article 16 of Directive 96/92 concerning common rules for the internal market in electricity, like the general principle of non-discrimination of which they are specific applications, preclude different treatment of comparable situations and like treatment of different situations. The rule of non-discriminatory access to the national electricity transmission system laid down in Directive 96/92 does not, however, preclude a Member State from adopting a measure which imposes an increased charge for a transitional period for access to and use of that system only on certain electricity generation and distribution undertakings to offset the advantage created for those undertakings, during the transitional period, by the altered legal framework following the liberalisation of the market in electricity as a result of the implementation of that directive. Such a measure treats differently situations which are not comparable. However, it is a matter for the national court to satisfy itself that the increased charge does not go beyond what is necessary to offset that advantage.

(see paras 56-60, operative part 2)

JUDGMENT OF THE COURT (Third Chamber)

14 April 2005 (*)

(Internal market in electricity – Increased charge for access to and use of the national electricity transmission system – State aid – Directive 96/92/EC – Access to the system – Principle of non-discrimination)

In Joined Cases C-128/03 and C-129/03,

REFERENCES for a preliminary ruling under Article 234 EC from the Consiglio di Stato (Italy), made by decisions of 14 January 2003, received at the Court on 24 March 2003, in the proceedings

AEM SpA (C-128/03),

AEM Torino SpA (C-129/03)

v

Autorità per l’energia elettrica e per il gas and Others,

third party:

ENEL Produzione SpA,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, A. Borg Barthet, S. von Bahr (Rapporteur), J. Malenovský and U. Lõhmus, Judges,

Advocate General: C. Stix-Hackl,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 8 September 2004,

after considering the observations submitted on behalf of:

– AEM SpA and AEM Torino SpA, by O. Brouwer, advocaat, and T. Salonico, avvocato,

– the Italian Government, by I.M. Braguglia, acting as Agent, and M. Fiorilli, avvocato dello Stato,

– the Commission of the European Communties, by V. Di Bucci et H. Støvlbæk, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 October 2004,

gives the following

Judgment

1 The references for a preliminary ruling concern the interpretation of Article 87 EC and Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (OJ 1997 L 27, p. 20), in particular Articles 7 and 8 thereof.

2 Those questions were raised in proceedings brought by AEM SpA (‘AEM’) and AEM Torino SpA (‘AEM Torino’) by which those companies contested two decisions of the Autorità per l’energia elettrica e per il gas (Electricity and Gas Authority; ‘the AEEG’) and a ministerial decree increasing the charge on certain hydroelectric and geothermal power stations for access to and use of the national electricity transmission system.

Relevant provisions

Community legislation

3 Article 1 of Directive 96/92 states that the directive ‘establishes common rules for the generation, transmission and distribution of electricity. It lays down the rules relating to the organisation and functioning of the electricity sector, access to the market, the criteria and procedures applicable to calls for tender and the granting of authorisations and the operation of systems’.

4 Article 7(1) and (5) of Directive 96/92 provide:

‘1. Member States shall designate or shall require undertakings which own transmission systems to designate, for a period of time to be determined by Member States having regard to considerations of efficiency and economic balance, a system operator to be responsible for operating, ensuring the maintenance of, and, if necessary, developing the transmission system in a given area and its interconnectors with other systems, in order to guarantee security of supply.

…

5. The system operator shall not discriminate between system users or classes of system users, particularly in favour of its subsidiaries or shareholders.’

5 Article 8(1) to (3) of the same directive provide:

‘1. The transmission system operator shall be responsible for dispatching the generating installations in its area and for determining the use of interconnectors with other systems.

2. Without prejudice to the supply of electricity on the basis of contractual obligations, including those which derive from the tendering specifications, the dispatching of generating installations and the use of interconnectors shall be determined on the basis of criteria which may be approved by the Member State and which must be objective, published and applied in a non-discriminatory manner which ensures the proper functioning of the internal market in electricity. They shall take into account the economic precedence of electricity from available generating installations of interconnector transfers and the technical constraints on the system.

3. A Member State may require the system operator, when dispatching generating installations, to give priority to generating installations using renewable energy sources or waste or producing combined heat and power.’

6 Article 24(1) of the directive states:

‘1. Those Member States in which commitments or guarantees of operation given before the entry into force of this Directive may not be honoured on account of the provisions of this Directive may apply for a transitional regime which may be granted to them by the Commission, taking into account, amongst other things...