Annotation on the Judgment of the Court of Justice of the European Union of 19 December 2013 in Case C-262/12, Association Vent de Colère! Fédération nationale and Others v Ministre de l’Écologie, du Développement durable, des Transports et du Logement, Ministre de l’Économie, des Finances et de l’Industrie

Ever since PreussenElektra, Member States have been relying on this ruling of the EU Court of Justice to support electricity from renewable resources without granting State aid. In PreussenElektra, the Court of Justice found that there was no transfer of State resources and hence no State aid, because the German government imposed an obligation on electricity distributors to buy green electricity without establishing a mechanism that would have allowed it to exercise control over the resources that flowed between users, distributors and producers of electricity. In the present case (Association Vent de Colère!), however, the Court of Justice concluded that the French feed-in tariff support scheme for production of electricity from wind installations constituted State aid. Despite the efforts of the French Government to demonstrate the applicability of PreussenElektra, the Court of Justice reached a different conclusion, thereby shedding some light on how to assess a mechanism where the State delegates to a private entity the power to levy charges on consumers. The Court distinguished this case, where funds for supporting electricity from renewable resources can be regarded as granted “by the State” or “through State resources” and hence, constitute State aid within the meaning of Article 107(1) TFEU, from PreussenElektra-type of arrangements where the resources are out of public control and cannot be attributed to the State.