Asociación Española de la Industria Eléctrica (UNESA) and Others v Administración General del Estado.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Lycourgos
• ECLI: ECLI:EU:C:2019:935
• Date: 07 November 2019
• Docket Number: C-105/18,C-113/18
• Procedure Type: Reference for a preliminary ruling

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

7 November 2019 (*)

(Reference for a preliminary ruling — Polluter pays principle — Directive 2000/60/EC — Article 9(1) — Recovery of the costs of water services — Common rules for the internal market in electricity — Directive 2009/72/EC — Article 3(1) — Principle of non-discrimination — Article 107(1) TFEU — State aid — Tax on the use of inland waters for the production of electricity — Tax imposed only on hydroelectricity producers operating on inter-communities river basins)

In Joined Cases C‑105/18 to C‑113/18,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decisions of 27 June 2017 (C‑105/18, C‑106/18, C‑108/18, C‑110/18 and C‑111/18), of 18 July 2017 (C‑107/18 and C‑113/18), of 4 July 2018 (C‑109/18) and of 11 July 2017 (C‑112/18), received at the Court on 13 February 2018, in the proceedings

Asociación Española de la Industria Eléctrica (UNESA) (C‑105/18),

Energía de Galicia (Engasa) SA (C‑106/18),

Duerocanto SL (C‑107/18),

Corporación Acciona Hidráulica (Acciona) SLU (C‑108/18),

Associació de Productors i Usuaris d’Energia Elèctrica (C‑109/18),

José Manuel Burgos Pérez,

María del Amor Guinea Bueno (C‑110/18),

Endesa Generación SA (C‑111/18),

Asociación de Empresas de Energías Renovables (APPA) (C‑112/18),

Parc del Segre SA,

Electra Irache SL,

Genhidro Generación Hidroeléctrica SL,

Hicenor SL,

Hidroeléctrica Carrascosa SL,

Hidroeléctrica del Carrión SL,

Hidroeléctrica del Pisuerga SL,

Hidroeléctrica Santa Marta SL,

Hyanor SL,

Promotora del Rec dels Quatre Pobles SA (C‑113/18),

v

Administración General del Estado,

interveners:

Iberdrola Generación SAU,

Hidroeléctrica del Cantábrico SA,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, I. Jarukaitis, E. Juhász, M. Ilešič and C. Lycourgos (Rapporteur), Judges,

Advocate General: G. Hogan,

Registrar: L. Carrasco Marco, administrator,

having regard to the written procedure and further to the hearing on 28 February 2019,

after considering the observations submitted on behalf of:

– Asociación Española de la Industria Eléctrica (UNESA), by J.C. García Muñoz, abogado, and M.C. Villaescusa Sanz, procuradora,

– Energía de Galicia SA (Engasa), by F. Plasencia Sánchez and B. Ruiz Herrero, abogados, and P. Ortiz-Cañavate Levenfeld, procuradora,

– Corporación Acciona Hidráulica (Acciona) SLU, by F. Plasencia Sánchez and A. Lázaro Gogorza, procuradora,

– Associació de Productors i Usuaris d’Energia Elèctrica, by J.C. Hernanz Junquero, abogado, and D. Martín Cantón, procuradora,

– Endesa Generación SA, by J.L. Buendía Sierra, F.J. López Villalta y Peinado, E. Gardeta González, J.M. Cobos Gómez and A. Lamadrid de Pablo, abogados,

– Parc del Segre SA and Others, by P.M. Holtrop, abogado, and F.S. Juanas Blanco, procurador,

– Iberdrola Generación SAU, by J. Ruiz Calzado and J. Domínguez Pérez, abogados, and J.L. Martín Jaureguibeitia, procurador,

– the Spanish Government, by A. Rubio González and V. Ester Casas, acting as Agents,

– the German Government, initally by T. Henze and J. Möller, and subsequently by J. Möller, acting as Agents,

– the European Commission, by O. Beynet, P. Němečková, G. Luengo and E. Manhaeve, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 8 May 2019,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Article 191(2) TFEU, Article 9(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1), Article 3(1) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55) and Article 107(1) TFEU.

2 The requests have been made in proceedings between, of the one part, Asociación Española de la Industria Eléctrica (UNESA) and several other Spanish hydroelectricity producers and, of the other, the Administración General del Estado (General administration of the State, Spain), concerning the lawfulness of the tax on the use of inland waters for the production of electricity.

Legal context

EU law

Directive 2000/60

3 Recital 13 of Directive 2000/60 states:

‘There are diverse conditions and needs in the Community which require different specific solutions. This diversity should be taken into account in the planning and execution of measures to ensure protection and sustainable use of water in the framework of the river basin. Decisions should be taken as close as possible to the locations where water is affected or used. Priority should be given to action within the responsibility of Member States through the drawing up of programmes of measures adjusted to regional and local conditions.’

4 Article 4 of that directive provides:

‘1. In making operational the programmes of measures specified in the river basin management plans:

(a) for surface waters

(i) Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8;

(ii) Member States shall protect, enhance and restore all bodies of surface water, subject to the application of subparagraph (iii) for artificial and heavily modified bodies of water, with the aim of achieving good surface water status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;

(iii) Member States shall protect and enhance all artificial and heavily modified bodies of water, with the aim of achieving good ecological potential and good surface water chemical status at the latest 15 years from the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;

(iv) Member States shall implement the necessary measures in accordance with Article 16(1) and (8), with the aim of progressively reducing pollution from priority substances and ceasing or phasing out emissions, discharges and losses of priority hazardous substances

without prejudice to the relevant international agreements referred to in Article 1 for the parties concerned;

…’

5 Article 9 of that directive provides:

‘1. Member States shall take account of the principle of recovery of the costs of water services, including environmental and resource costs, having regard to the economic analysis conducted according to Annex III, and in accordance in particular with the polluter pays principle.

Member States shall ensure by 2010:

– that water-pricing policies provide adequate incentives for users to use water resources efficiently, and thereby contribute to the environmental objectives of this Directive,

– an adequate contribution of the different water uses, disaggregated into at least industry, households and agriculture, to the recovery of the costs of water services, based on the economic analysis conducted according to Annex III and taking account of the polluter pays principle.

Member States may in so doing have regard to the social, environmental and economic effects of the recovery as well as the geographic and climatic conditions of the region or regions affected.

2. Member States shall report in the river basin management plans on the planned steps towards implementing paragraph 1 which will contribute to achieving the environmental objectives of this Directive and on the contribution made by the various water uses to the recovery of the costs of water services.

3. Nothing in this Article shall prevent the funding of particular preventive or remedial measures in order to achieve the objectives of this Directive.

…’

6 Article 11 of the same directive provides:

‘1. Each Member State shall ensure the establishment for each river basin district, or for the part of an international river basin district within its territory, of a programme of measures, taking account of the results of the analyses required under Article 5, in order to achieve the objectives established under Article 4. Such programmes of measures may make reference to measures following from legislation adopted at national level and covering the whole of the territory of a Member State. Where appropriate, a Member State may adopt measures applicable to all river basin districts and/or the portions of international river basin districts falling within its territory.

2. Each programme of measures shall include the “basic” measures specified in paragraph 3 and, where necessary, “supplementary” measures.

3. “Basic measures” are the minimum requirements to be complied with and shall consist of:

…

(b) measures deemed appropriate for the purposes of Article 9;

…’

7 Annex III to Directive 2000/60, entitled ‘Economic analysis’, is worded as follows:

‘The economic analysis shall contain enough information in sufficient detail (taking account of the costs associated with collection of the relevant data) in order to:

(a) make the relevant calculations necessary for taking into account under Article 9 the principle of recovery of the costs of water services, taking account of long term forecasts of supply and demand for water in the river basin district and, where necessary:

– estimates of the volume, prices and costs associated with water services, and

– estimates of relevant investment including forecasts of such investments;

(b) make judgements about the most...