Today, the European General Court (EGC) confirmed the European Commission’s stance in regard to the full exemption from grid charges for large electricity consumers pursuant to sec. 19 subs. 2 Electricity Grid Charges Ordinance (Stromnetzentgeltverordnung – StromNEV) in the years 2012 and 2013 and ruled that this exemption constitutes State aid incompatible with EU law. On behalf of 33 clients, the law firm Becker Büttner Held (BBH) is now assessing the prospects of an appeal to the European Court of Justice (ECJ).
As certain industrial companies have a continuous electricity consumption pattern, they are granted cost relief in the form of individual grid charges. On 28/05/2018, the European Commission (Commission Decision C(2018)3166) decided that the full exemption of electricity-intensive companies from paying grid charges in the years 2012 and 2013 was incompatible with EU State aid law. The Commission ordered Germany to recover part of the grid charges these companies were exempt from paying: For the industrial companies originally exempt from grid charges this meant retroactive payments of grid charges amounting to millions of euros.
Many companies affected by the Commission’s decision brought an action for annulment before the EGC. Becker Büttner Held (BBH) acts as legal representative in 33 of the total 38 cases. The Federal Republic of Germany joined the proceedings on the side of the applicants. The EGC as the court of first instance has now confirmed the Commission’s stance.
The decision is viewed with scepticism by BBH lawyers Dr. Thies Christian Hartmann, Dr. Markus Kachel and Dr. Dörte Fouqet, who acted as legal representatives in the proceedings. According to them, the exemptions from grid charges by no means constitute State aid. “In order to qualify as State aid, the exemption from grid charges would have to be financed through state resources. This, however, is not the case: In the matter at hand, there is a surcharge mechanism which does not allow for any relevant state intervention,” explains BBH partner Dr. Thies Christian Hartmann. BBH partner Dr. Markus Kachel adds: “By the way, the ECJ put forward similar arguments in 2019 when it ruled that the Renewable Energy Sources Act 2012, i.e. the EEG 2012, did not constitute State aid. We are now ascertaining whether the EGC might have incorrectly assessed the facts of our case.” Dr. Dörte Fouquet, head of BBH’s Brussels office, says: “What we need right now is a fundamental decision on whether exemptions from grid charges constitute State aid and thus clarity for the companies concerned.”
Becker Büttner Held is a leading provider of advisory services for energy and infrastructure companies and their customers. Energy and supply companies, particularly public utilities, municipalities and local authorities, industrial companies and international groups are among its core clients. BBH advises these and many other companies and organisations in all legal matters and also assists them with business and strategic advice.
Contact:
Prof. Dr. Ines Zenke
Lawyer (Rechtsanwältin), Partner
Phone +49 (0)30 611 28 40 - 179
ines.zenke@bbh-online.de
Visit Becker Büttner Held online at www.die-bbh-gruppe.de, www.bbh-blog.de, twitter.com/BBH_online or instagram.com/die_bbh_gruppe.