Official Journal of the European Union

C 223/21

(Case T-260/14)

2014/C 223/26

Language of the case: German

Parties

Applicants: Vattenfall Europe Mining AG (Cottbus, Germany), Vattenfall Europe Sales GmbH (Hamburg, Germany) and Vattenfall GmbH (Berlin, Germany) (represented by: R. Karpenstein and C. Johann, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—annul, in accordance with Article 264 TFEU, the decision of the European Commission of 18 December 2013 in the procedure State aid SA.33995 (2013/C) (ex 2013/NN) — Germany — Support for renewable electricity and reduced EEG-surcharge for energy-intensive users, C(2013) 4424 final;

—order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on three pleas in law.

1.First plea in law: No State resources within the meaning of Article 107(1) TFEU

By their first plea, the applicants claim that the Commission wrongly assumes a use of ‘State resources’ within the meaning of Article 107(1) TFEU in the context of the financing flows provided for under the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG).

—An advantage without the use of State resources is not sufficient to operate as a legal basis fulfilling the definition of aid. The required use of State resources is lacking in relation to the EEG-surcharge because that surcharge is paid solely by private parties and the resources raised cannot be attributed to the State in the absence of a permanent control and the associated possibility of access.

—State control over the EEG-surcharge itself is ruled out simply because the amount of the surcharge is not determined by State authorities, but by the price of electricity on the electricity exchange and the amount of renewable electricity fed into it. In addition, there are no opportunities for the State to influence the relationship between the energy supplier and the ultimate consumer at the fifth stage of the EEG compensation mechanism. The passing-on of the costs takes place here in a relationship governed purely by private law.

—Consequently, the required State control is also lacking in relation to the so-called special compensation regime of the EEG due to the essential link between the qualification of the EEG-surcharge and the surcharge reduction for energy-intensive users. It cannot be said that control exists by virtue of the fact that the decision on the control is made by the Bundesamt für Wirtschaft und Ausfuhrkontrolle (Federal Office of Economics and Export Control) because that office is assigned a purely reconstructive or declaratory task.

—In addition, by means of the surcharge reduction for energy-intensive users, the State did not waive resources which it normally could have expected to obtain. No reduction of the total revenue from the EEG-surcharge is associated with the surcharge reduction because of the particular construction of the EEG compensation mechanism. On the contrary, the surcharge reductions for energy-intensive users were compensated for by higher surcharges imposed on each kilowatt-hour of electricity supplied to non-privileged end-consumers.

2.Second plea in law: No selective advantage for the purposes of Article 107(1) TFEU

By their second plea, the applicants claim that the so-called special compensation regime of the EEG — contrary to the view taken by the Commission — does not provide for any selective advantage for the purposes of Article 107(1) TFEU. The distinction between energy-intensive and non-energy-intensive consumers is grounded in the logic of the surcharge system and is thereby a priori not selective. The surcharge reduction for energy-intensive users merely compensates for the particular disadvantages which, for those users, were associated with the EEG-surcharge raised according to consumption.

3.Third plea in law: No (threatening) distortion of competition or effect on trade

By their third plea, the applicants allege that the special compensation regime does not distort or threaten to distort competition and that trade between the Member States is not affected.