Case C‑262/12, Vent De Colère and Others

Court further defines first condition article 107(1) TFEU


>> This case concerned the question whether a mechanism for offsetting in full the additional costs imposed on undertakings because of an obligation to purchase wind-generated electricity at a price higher than the market price that was financed by final consumers must be regarded as an intervention by the State or through State resources within the meaning of Article 107(1) TFEU.

The Court first of all stated that, while categorisation as State aid within the meaning of Article 107(1) TFEU presupposes that four conditions were met, namely, that there was an intervention by the State or through State resources, that the intervention was liable to affect trade between Member States, that it conferred a selective advantage on the beneficiary and that it distorted or threatened to distort competition, the present question concerned the first of those conditions only.
(see Case C‑677/11 Doux Élevage and Coopérative agricole UKL-ARREE [2013])

The Court reiterated that for it to be possible to classify advantages as State aid, first, they must be granted directly or indirectly through State resources and, secondly, that grant must be attributable to the State (see, Case C‑482/99 France v Commission [2002]).  The Court held that it was clear that the offset mechanism at issue in the main proceedings was established by law and must therefore be regarded as attributable to the State.   As regards, in the second place, the condition that the advantage must be granted directly or indirectly through State resources, the Court recalled that measures not involving a transfer of State resources might still fall within the concept of aid (see, to that effect, Case C‑387/92 Banco Exterior de España [1994]; and Case C‑6/97 Italy v Commission [1999]).

The Court stated that the concept of ‘intervention through State resources’ was intended to cover, in addition to advantages granted directly by the State, those granted through a public or private body appointed or established by that State to administer the aid (see, to that effect, inter alia, Case 78/76 Steinike & Weinlig [1977]).

The Court stressed that Article 107(1) TFEU covered all the financial means by which the public authorities might actually support undertakings, irrespective of whether or not those means were permanent assets of the public sector. Therefore, even if the sums corresponding to the measure in question were not permanently held by the Treasury, the fact that they constantly remained under public control, and therefore available to the competent national authorities, was sufficient for them to be categorised as State resources.

The Court found that  Article 107(1) TFEU must be interpreted as meaning that a mechanism for offsetting in full the additional costs imposed on undertakings because of an obligation to purchase wind-generated electricity at a price higher than the market price that was financed by all final consumers of electricity in the national territory, constitutes an intervention through State resources.