14.2.2022

Official Journal of the European Union

C 73/27

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(Case C-795/21 P)

(2022/C 73/31)

Language of the case: German

Parties

Appellants: WEPA Hygieneprodukte GmbH, WEPA Deutschland GmbH & Co. KG, the latter formerly Wepa Leuna GmbH and Wepa Papierfabrik Sachsen GmbH (represented by: H. Janssen, A. Vallone, Rechtsanwälte, D. Salm, Rechtsanwältin)

Other parties to the proceedings: European Commission, Federal Republic of Germany

Form of order sought

The appellants claim that the Court should:

1.set aside in full the judgment under appeal of the General Court (Third Chamber) of 6 October 2021 in Case T-238/19;

2.annul the Commission’s Decision of 28 May 2018 in the case ‘State aid SA.34045 (2013/c) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 of StromNEV’;

3.in the alternative, refer the case back to the General Court;

4.order the Commission to pay the costs of both sets of proceedings.

Grounds of appeal and main arguments

By their first ground of appeal, the appellants claim that the General Court distorted facts and misconstrued the meaning and scope of national law, in so far as it based its decision on the following: first that the Bundesnetzagentur (Federal Network Agency) had set the amount of the surcharge under Paragraph 19(2) of the German Stromnetzentgeltverordnung (StromNEV) (Federal Regulation on electricity network charges) in a binding manner; secondly that the Federal Network Agency had issued very detailed requirements; and, thirdly that the loss of revenues of the network operators had been fully covered by that surcharge. The appellants therefore claim that relevant facts for the General Court which should have demonstrated State control over the funds collected by the surcharge did not exist at all.

In their second ground of appeal the appellants put forward that the General Court misinterpreted the conditions for the existence of aid granted through State resources, within the meaning of Article 107(1) TFEU. First, the General Court failed to recognise the fact that the surcharge under Paragraph 19(2) StromNEV did not constitute a charge, a ‘compulsory charge’ or a ‘parafiscal charge’ (first part of the second ground of appeal). Second, the General Court misinterpreted the fact that the exemption for baseload consumers under the second sentence of Paragraph 19(2) StromNEV and the surcharge under Paragraph 19(2) StromNEV were not aid granted from State resources (second part of the second ground of appeal). If, however, as is the case, the surcharge does not constitute a charge, the prerequisite of Article 107(1) TFEU is not satisfied, which is also the view of the General Court. In addition, even if were to constitute charge, the prerequisite of Article 107(1) TFEU would not be satisfied, as the surcharge is not aid granted by the State or from State resources.

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