On Thursday 28 March, the judges of the Court of Justice of the European Union (CJEU) annulled the European Commission's 2014 decision which concluded that the 2012 German law on renewable energy (EEG) involved state aid.
This law was introduced to support companies producing electricity from renewable energy and mine gas.
Under this law, producers were guaranteed a price higher than the market price, financed by a surcharge payable by suppliers to the final customers, which had the effect of passing on this surcharge to the latter. However, electricity-intensive companies were able to benefit from a surcharge cap in order to maintain their international competitiveness.
In November 2014, the Commission found that the EEG involved some State aid, but considered that most of it was compatible with EU law (see EUROPE 11204/4). For this reason, it did not order the recovery of this State aid.
Berlin brought an action for annulment against this decision before the General Court of the European Union, which rejected it in May 2016 (see EUROPE 11548/22). The German authorities then brought an appeal against this judgment to the Court.
In its judgment, the Court ruled in favour of Germany by annulling the Commission's decision and setting aside the General Court's judgment. On the one hand, it considers that the EEG surcharge cannot be assimilated to a tax. On the other hand, the Court considers that the General Court failed to establish that the German State held a power of disposal over the funds generated by the EEG surcharge.
For these reasons, the Commission has not, according to the Court, established conclusively that the advantages provided for by the EEG involved State resources and therefore constituted State aid.
Taking note of this judgment, the Commission underlined the fact that it “does not necessarily mean that the current version of the EEG is aid-free because the financing is different from the EEG 2012”. It added that, with respect to EEG 2012, the recovery orders have now lost their legal basis.
See the judgment: http://bit.ly/2uvespo. (Original version in French by Lucas Tripoteau)