Opinion of AG Spielmann in the German KWKG 2020 case: Selectivity and PreussenElektra
Advocate General Spielmann delivered his Opinion in Case C-242/24 P Commission v Federal Republic of Germany, proposing that the Court dismiss the Commission’s appeal and uphold the General Court’s judgment of 24 January 2024 (T-409/21).
The case concerns whether support measures under the German Law on combined heat and power generation as reformed in 2020 (KWKG 2020), including premiums (with possible bonuses) “through State resources” under Article 107(1) TFEU. The Opinion endorses the General Court’s approach that “State resources” are established alternatively where funds derive from a compulsory levy managed and apportioned under national law or where sums remain under constant public control. Applying that test, AG Spielmann finds that the mandatory payments by network operators to CHP beneficiaries at the first level do not evidence the origin of State resources, the KWKG surcharge at the second level is not legally mandatory for pass-through to end users, and the funds are not under constant public control.
The Advocate General further clarifies that the PreussenElektra case law is not limited to price-regulation schemes and continues to exclude measures financed directly by private operators’ own resources where there is no compulsory pass-through or State-controlled fund management.
AG Spielmann therefore proposes that the appeal should be dismissed.