Preussenelektra A.G. V. Schleswag A.G., (Windpark Reussenköge III Gmbh and Another, Intervening) (Case C-379/98)
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Preussenelektra A.G. v. Schleswag A.G., (Windpark Reussenköge III GmbH and Another, intervening) (Case C-379/98) Before the Court of Justice of the European Communities ECJ (Presiding, RodrÍguez Iglesias P.; Gulmann, Wathelet and Skouris PP.C.; Edward, Puissochet, Jann, Sevón and Schintgen ( Rapporteur) JJ.) Mr Francis Jacobs, Advocate General. 13 March 2001 H1 Reference from Germany by the Landgericht Kiel (Regional Court, Kiel) under Article 177 of the E.C. Treaty (now Article 234 E.C.). H2 State aids--electricity--reference for preliminary ruling--admissibility-- national legislation requiring electricity suppliers to purchase electricity at minimum prices and apportioning the costs of such purchase between the suppliers and upstream network operators--system established by national legislation not constituting State aid under Article 92 of the E.C. Treaty (now, after amendment, Article 87 E.C.)--advantages not granted directly or indirectly through State resources--provisions not incompatible with Article 30 of the E.C. Treaty (now, after amendment, Article 28 E.C.). H3 P operated a number of power stations and an electricity distribution network in Germany. S was a regional electricity supplier which bought electricity to supply to its customers. P owned a majority share-holding in S and S purchased electricity almost exclusively from P. National legislation required electricity suppliers, such as S, to purchase a certain proportion of their electricity at minimum prices from renewable energy sources in their area of supply. Where this obligation caused undue hardship to suppliers, they were entitled to pass on the cost of such purchases to upstream electricity network operators, such as P. In April 1998, in accordance with the provisions applying in situations of undue hardship, P paid a sum to S. P applied to the national court, seeking an order requiring S to repay a proportion of that sum. P argued that the national legislation under which the sum had been paid was contrary to the directly applicable provisions of the Treaty on State aid and was therefore invalid. S defended the claim, *834 arguing that, while the national legislation constituted a modified aid scheme, the provision under which P paid the disputed sum to S was merely a redistribution rule and was not, taken in its own right, in the nature of State aid within Article 92 of the E.C. Treaty (now, after amendment, Article 87 E.C.). The national court sought a preliminary ruling as to the application of the Treaty provisions on State aid to this case and as to whether the national legislation was compatible with Article 30 of the E.C. Treaty (now, after amendment, Article 28 E.C.). W and L intervened in the main proceedings, challenging the admissibility of the reference for a preliminary ruling on a number of grounds. Held: Admissibility of the question for a preliminary ruling H4 (a) It was solely for the national court to determine both the necessity of a reference for a preliminary ruling and the relevance of the questions submitted to the Court. However, exceptionally, where the request bore no relationship to the facts of the proceedings, where the problem referred was hypothetical or where the Court had insufficient factual or legal material before it, a request from a national court was to be refused. [38]-[39] Union Royale Belge des Societes de Football Association and Others v. Bosman and Others (C-415/93): [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645; Foglia v. Novello (244/80): [1981] E.C.R. 3045; [1982] 1 C.M.L.R. 585; Idéal Tourisme SA v. Belgium (C-36/99): [2000] E.C.R. I-6049; and Kachelmann v. Bankhaus Hermann Lampe KG (C-322/98): [2000] E.C.R. I-7505, followed. H5 (b) In this case, accordingly, it was for the national court to ascertain the facts which had given rise to the dispute and to establish the consequences for the judgment which it was required to deliver. P was seeking repayment of the sum paid by it under the national legislation and, therefore, the dispute was not hypothetical. While S itself had an interest in challenging the national legislation, the dispute in the main proceedings concerned the sum paid by P to S and not any aid allegedly paid by S to the producers of electricity from renewable energy sources. Accordingly, the dispute in the main proceedings could not be regarded as a procedural device to induce the Court to rule on aspects of Community law that did not serve any objective requirement relating to that dispute. That conclusion was supported by the fact that the national court allowed W and L to intervene in the main proceedings in support of S. The fact that P was S's main shareholder did not deprive the dispute of its genuine character. The questions raised by the national court relating to the Treaty were, in any event, relevant and it was, therefore, necessary for the Court to give answers to the questions referred. [40]-[53] World Wildlife Fund and Others v. Autonome Provinz Bozen and Others (C- 435/97): [1999] E.C.R. I-5613; [2000] 1 C.M.L.R. 149, followed *835 . Whether the national law breached Article 92 of the E.C. Treaty (now, after amendment, Article 87 E.C.) H6 (a) There was no dispute that the national legislation conferred an economic benefit on producers of electricity from renewable energy sources. Article 92 of the E.C. Treaty provided that any aid granted by a Member State, or through State resources, in any form whatsoever which distorted or threaten to distort competition by favouring certain undertakings or the production of certain goods was incompatible with the Common Market in so far as it affected trade between Member States. Only advantages granted directly or indirectly through State resources were to be considered aid within the meaning of Article 92. All advantages granted by the State did not, however, constitute aid. [54]-[58] Ministere Public of the Netherlands v. Van Tiggele (82/77): [1978] E.C.R. 25; [1978] 2 C.M.L.R. 528; Sloman Neptun v. Bodo Ziesemer (C 72- 73/91): [1993] E.C.R. I-887; [1995] 2 C.M.L.R. 97; Kirsammer-Hack v. Sidal (C-189/91): [1993] E.C.R. I-6185; [1994] I.R.L.R. 185; Viscido and Others v. Ente Poste Italiane (C 52-54/97), 7 June 1998: [1998] E.C.R. I-2629; [1998] 3 C.M.L.R. 184; Ecotrade Srl v. Altigorni E Ferriere di Servola SpA (C-200/97): [1998] E.C.R. I-7907; [1999] 2 C.M.L.R. 804; Industrie Aeronautiche E Meccaniche Rinaldo Piaggio v. International Factors Italia and Others (C-295/97): [1999] E.C.R. I-3735, followed. H7 (b) In the case at issue, the obligation placed on private electricity suppliers to purchase electricity produced from renewable energy sources at fixed minimum prices did not involve any direct or indirect transfer of State resources to undertakings producing that type of electricity. Therefore, the allocation of the financial burden arising from that obligation between private undertakings did not constitute a direct or indirect transfer of State resources either. In those circumstances, the fact that the purchase obligation was imposed by statute and conferred an undeniable advantage on certain undertakings was not capable of conferring upon it the character of State aid within the meaning of Article 92(1) of the E.C. Treaty. This was the case regardless of the fact that, as a result of the national legislation, undertakings such as P and S were likely to pay less tax to the State. [59]-[62] Sloman Neptun (C-72/91 & 73/91), supra; and Ecotrade (C-200/97), supra, followed. H8 (c) It was not necessary to interpret the provisions of the Treaty concerning State aid in conjunction with Article 5 of the E.C. Treaty (now Article 10 E.C.) as encompassing support measures which are decided upon by the State but financed by private undertakings. In that *836 regard, the interpretation of the provisions on State aid were to be contrasted with the Court's interpretation of Article 85 of the E.C. Treaty (now Article 81 E.C.). This Article concerned only the conduct of undertakings, while Article 92 referred directly to measures emanating from Member States. [63]-[65] Criminal Proceedings against Meng (C-2/91); [1993] E.C.R. I-5751, followed. H9 (d) Accordingly, a statutory provision such as that under consideration in the main proceedings did not constitute State aid within the meaning of Article 92 of the E.C. Treaty. [66] Whether the national law breached Article 30 of the E.C. Treaty (now Article 28 E.C.) H10 (a) Article 30 of the E.C. Treaty covered measures which were capable of hindering, directly or indirectly, actually or potentially, intra-Community trade. An obligation placed upon traders of a Member State to obtain a certain percentage of their supplies from a national supplier limited the ability of those traders to obtain supplies from sources in other Member States. In this case, the purchase obligation in the national legislation applied only to electricity produced from renewable energy sources within the scope of that legislation and was, therefore, capable of hindering intra-Community trade. [68]-[71] Procurer du Roi v. Dassonville (8/74): [1974] E.C.R. 837; [1974] 2 C.M.L.R. 436; Campus Oil and Others v. Minister for Industry and Energy (72/83): [1984] E.C.R. 2727; [1984] 3 C.M.L.R. 544; and Du Pont de Nemours v.