Judgment of the General Court Third Chamber of 6 October 2021, Covestro Deutschland v Commission, T-745/18

• Date: 06 October 2021
• Year: 2021

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Third, the Court rejects Nippon Chemi-Con’s complaint alleging that the Commission erred in

including in the value of sales relevant to the calculation of the basic amount of the fine the sales

made by its two wholly owned subsidiaries.

In that regard, the Court notes, first of all, that the presumption that subsidiaries are not

autonomous, developed by the case-law in order to allow the conduct of one legal entity (the

subsidiary) to be imputed to another (the parent company), also applies where, as in the present case,

it is a matter of determining the relevant value of sales for the purpose of calculating the basic

amount of the fine to be imposed on a parent company which participated directly in the

infringement and which, during the infringement period, sold the products covered by that

infringement in the EEA through its subsidiaries.

In so far as Nippon Chemi-Con owned 100% of the shares in its two subsidiaries and those three

companies therefore formed a single economic unit for the purposes Article 101 TFEU, the

Commission was fully entitled to take into account the amount of sales of capacitors which that

economic unit had made in the EEA in order to determine the relevant value of sales for the pur pose

of calculating the basic amount of the fine imposed on Nippon Chemi-Con.

2.2 State aid

Judgment of the General Court (Third Chamber) of 6 October 2021, Covestro

Deutschland v Commission, T-745/18

State aid – State aid scheme implemented by Germany 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 – Equal

treatment – Legitimate expectations

With effect from 2011, the Federal Republic of Germany granted certain large energy consumers full

exemption from network charges (‘the exemption at issue’). The costs involved in that exemption

were borne by the transmission system operators.

In order to offset the losses in revenue resulting from the exemption at issue, the Bundesnetzagentur

(BNetzA, the Federal Agency for Networks, Germany), by decision of 14 December 2011 (‘the 2011

BNetzA decision’), introduced a financing mechanism, which entered into force in 2012. Under that

mechanism, distribution system operators collected from end users or electricity suppliers a

surcharge (‘the surcharge at issue’), the amount of which was transferred to the transmission system

operators.

The amount of the surcharge was calculated each year on the basis of a methodology set out by the

BNetzA. The amount for 2012, the first year the system was in operation, was determined directly by

the BNetzA on a flat-rate basis. Moreover, since the mechanism did not apply to the costs of the

exemption at issue for 2011, each transmission system operator and distribution system operator,

depending on the network level to which the beneficiaries were connected, had to bear the losses in

respect of the exemption for that year.

Since the exemption at issue was subsequently declared null and void by decisions of the German

courts, it was abolished as of 1 January 2014.