Judgment_paragraph 68 · Republic of Austria v European Commission (T-251/11)

68In the second place, it must be stated that, as in the case giving rise to the judgment in Essent Netwerk Noord and Others, paragraph 44 above (EU:C:2008:413), the present case concerns resources intended to fund the measure at issue which are obtained through charges imposed on private subjects by the amended ÖSG, which provides for a mandatory additional price linked with the purchase of green electricity. By analogy with paragraphs 43 to 47 of the judgment in Essent Netwerk Noord and Others, paragraph 44 above (EU:C:2008:413), it must be considered that that additional price or surcharge can be assimilated to a parafiscal levy on electricity in Austria, which is set by a public authority, for purposes in the public interest and according to an objective criterion, according to the number of kilowatt/hours (kWh) of electricity transported. As the Commission emphasises at recital 68 to the contested decision, both the volume of green electricity to be purchased and the price are provided for by law, as Article 22b of the amended ÖSG states that the level of the clearing price is to be set annually by the competent Austrian Federal Minister. In addition, it has not been maintained by the Republic of Austria or by the United Kingdom, and there is nothing in the file to indicate, that the initiative to impose the charge, by means of the measure at issue, was taken by entities liable to pay it, or that ÖMAG acted solely as an instrument in a scenario which they themselves envisaged or that they themselves would have decided on the use of the financial resources. Accordingly, and by analogy to paragraph 66 of the judgment in Essent Netwerk Noord and Others, paragraph 44 above (EU:C:2008:413), the amounts at issue may be classified as funds having their origin in a State resource, capable of being assimilated to a parafiscal levy. As regards the particular question of the existence of an advantage resulting from the aid in the form of exemptions from payment of a parafiscal levy, and also of the selectivity of such an advantage (see, to that effect, judgment of 7 March 2012 in British Aggregates v Commission, T‑210/02 RENV, ECR, EU:T:2012:110, paragraphs 46 to 49 and the case-law cited), it will be assessed in the context of the examination of the Republic of Austria’s second plea (see paragraph 94 et seq. below).