14.2.2022

Official Journal of the European Union

C 73/22

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(Case C-791/21 P)

(2022/C 73/27)

Language of the case: German

Parties

Appellant: Federal Republic of Germany (represented by: J. Möller and R. Kanitz, acting as Agents)

Other parties to the proceedings: Covestro Deutschland AG, European Commission

Form of order sought

The appellant claims that the Court should:

—set aside the judgment under appeal of the General Court of the European Union of 6 October 2021 in Case T-745/18, in so far as it dismissed the action as unfounded;

—annul the Commission’s Decision of 28 May 2018 on State aid SA.34045 (2013/c) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 StromNEV C(2018) 3166 final, for the years 2012 and 2013 in accordance with Article 61(1) of the Statute of the Court of Justice;

—order the Commission to pay the costs before the General Court and the Court of Justice.

Grounds of appeal and main arguments

The appellant relies on a single ground of appeal, in which it alleges an infringement of Article 107(1) TFEU. According to the appellant, the General Court erred in law in assuming that the scheme in Paragraph 19(2) of the German Stromnetzentgeltverordnung (StromNEV) (Regulation on electricity network charges) constitutes State aid as provided for in Article 107(1) TFEU.

First, the General Court erred in law in finding, in the context of the assessment of the State nature of the network charges, that the existence of a mandatory charge on consumers or end users and the State control over the funds or over the administrators of those funds constituted two factors that were ‘part of an alternative’.

Secondly, the General Court erred in law in finding, in the context of the assessment whether there is a ‘mandatory charge on consumers or end users’, that the relationship between an electricity supplier and electricity end users was irrelevant. In addition, the General Court erred in law by taking into account the obligation to levy and not the legal obligation to pay network charges.

Thirdly, the General Court erred in law in holding, in the context of the assessment whether State control or State power to dispose of funds exists, that the exclusive use of the network charges collected did not rule out that the State could dispose of those funds.

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