Many times already, the European Commission faced strong criticism that it would abuse European State aid law to take over control in fields of the Member States’ regulatory policies outside its given competence. Whereas in the past such debate raged – as a prominent example – about the applicability of State aid law to the regulation of the banking sector and bank bailout measures, it has recently flared up newly with regard to State regulation of electricity markets and the promotion of green power. The underlying question is whether or not such regulatory measures fall within the scope of the notion of State aid as defined in Article 107(1) TFEU. With the European Courts not wearying of emphasizing the objective nature of the State aid concept, one would expect that almost 60 years after the entry into force of the Treaty of Rome all elements of this concept including its range and boundaries (if any) were already cleared leaving no room for any more fundamental questions. However, this is obviously not the case. In particular, still a crucial point of continuing concern is the determination of the conditions subject to which an aid may be considered ‘granted by a Member State or through State resources’. In a recent judgment, dealing with a prospected regulatory design for the promotion of green electricity in Austria, the General Court has taken the opportunity to bring more coherence to these conditions alongside the given case-law of the European Court of Justice, which anyhow remain ambivalent.
Keywords: State resources, Imputability, Environmental aid for the promotion of energy from renewable energy sources