Judgment of the General Court Second Chamber, Extended Composition, 21 December 2022, E. Breuninger v Commission, T-260/21

• Date: 21 December 2022
• Year: 2022

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tax exemption, irrespective of whether the biogas sold in Sweden was produced on national territory

or was imported.

As regards Article 110 TFEU, which prohibits Member States from imposing on imported products

taxation in excess of that imposed on similar domestic products, the Court notes that the existence of

overcompensation may be regarded as an objective criterion allowing the tax exemption provided for

by the schemes at issue to be applied only to biogas, whether domestic or imported, the additional

production costs of which as compared with fossil gases have not already been compensated for by

other aid. That differentiation, based on an objective criterion, is such as to avoid the discrimination

which would result from compensation already granted to biogas imported from certain Member

States. The Court also states that the schemes at issue give rise to reverse discrimination against

biogas produced in Sweden in favour of biogas produced in other Member States which grant aid for

energy production from biogas. That outcome cannot be regarded as being imposed by the obligation

to comply with Article 110 TFEU, the rationale of which is to prevent a Member State from favouring

its own production to the detriment of that of other Member States.

In the light of those considerations, the Court concludes that, when examining the compatibility of the

schemes at issue with the internal market, the Commission should have experienced serious

difficulties, linked to the overcompensation which is liable to result from the cumulation at issue,

which necessitate the initiation of the formal investigation procedure. The Court therefore upholds

the action and annuls the contested decisions.

Judgment of the General Court (Second Chamber, Extended Composition), 21 December

2022, E. Breuninger v Commission, T-260/21

State aid – Framework system to grant support for uncovered fixed costs in the context of the COVID-19

pandemic in Germany – Decision not to raise any objections – Temporary Framework for State aid

measures – Individual examination of the aid scheme notified – Measure aimed at remedying a serious

disturbance in the economy of a Member State – Proportionality

On 17 November 2020, the Federal Republic of Germany notified the European Commission of an aid

scheme to provide support to undertakings for their uncovered fixed costs in the context of the

COVID-19 outbreak on its territory. Under the scheme, aid of up to EUR 3 million could be granted to

undertakings that had suffered a loss of turnover of at least 30% during the reference period.

Referring to its Communication on the Temporary Framework for State aid measures to support the

economy in the current COVID-19 outbreak,

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the Commission declared the notified scheme

compatible with the internal market in accordance with Article 107(3)(b) TFEU.

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Under that provision,

aid to remedy a serious disturbance in the economy of a Member State may, under certain

circumstances, be considered to be compatible with the internal market.

On 2 February 2021, the Federal Republic of Germany notified the Commission of an amendment to

its aid scheme, increasing the aid ceiling to EUR 10 million per undertaking and extending it until

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Communication from the Commission of 19 March 2020 on the Temporary Framework for State aid measures to support the economy in

the current COVID-19 outbreak (OJ 2020 C 91 I, p. 1, ‘the Temporary Framework’), which was amended for the first time on 3 April 2020 (OJ

2020 C 112 I, p. 1), for the second time on 8 May 2020 (OJ 2020 C 164, p. 3), for the third time on 29 June 2020 (OJ 2020 C 218, p. 3), for the

fourth time on 13 October 2020 (OJ 2020 C 340 I, p. 1), and for the fifth time on 28 January 2021 (OJ 2021 C 34, p. 6).

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Commission Decision C(2020) 8318 final of 20 November 2020 on State aid SA.59289 (2020/N) – Germany COVID-19 – Support for uncovered

fixed costs (OJ 2022 C 124, p. 1).