The time when state aid was thought to be a synonym of subsidy is far in the past. For a measure to be categorised as state aid, first, there must be an intervention by the state or through state resources; second, the intervention must be able to affect trade between member states; third, it must confer an advantage on the recipient; fourth, it must distort or threaten to distort competition. The first condition to be fulfilled contains in reality two sub-criteria. It is settled case law that those sub-criteria must be construed narrowly and are cumulative.
Hence, if there is an advantage, it must be granted directly or indirectly through state resources and its grant must be attributable to the state (C-73/91 Sloman Neptun  ECR I-887). In the Preussen Elektra case (Case C-379/98  ECR I-2099), attempts failed to consider as an aid the requirement on private electricity suppliers to purchase local electricity above market value. In that case, the financial burden of such requirement rested with the electricity suppliers, so that no direct or indirect state resources were involved. In Stardust Marine (C-482/99 France v Commission  ECR I-4397), the Court of Justice of the European Union (the CJEU) considered that even if the sums corresponding to the measure in question are not permanently held by the Treasury, the fact that they constantly remained under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as state resources. In Vent de Colère! (Case C-262/12, not yet reported), the CJEU deemed that even if only part of the sums are not channelled through the account of a public body, the measure may fulfil the first condition to qualify as state aid.
In that case, Electricité de France (EDF) and non- nationalised electricity distributors were obliged by law to purchase electricity from producers in national territory using wind-power electricity-generating installations, at a price higher than the market price. Additional costs so incurred to electricity distributors were fully compensated by contributions made by all final consumers. By French law, the contributions paid by the end consumers were paid out to the operators bearing the purchasing obligation through the Caisse des dépôts et consignations (CDC), a French public entity. The question was whether the contributions paid by end consumers to cover the additional costs of such obligation were made through an intervention by the state and through state resources.
It was obvious that since the compensation mechanism was established by law, the measure was attributable to the state (para 18). As regards the sub-criterion whether state resources were involved, the CJEU recalled first that measures not involving a transfer of state resources may constitute an aid (para 19). That is the case where advantages are granted through the intermediary of a public or private body appointed by the state to administer the aid (para 20). In the present case, the law imposed upon end consumers compulsory contributions and entrusted to the CDC (paras 22 and 25), thereby remaining all the time under public control (para 33).
However, not all contributions to cover the additional costs incurred by the purchasing obligation were channelled through the CDC. It appeared that operators subject to the obligation retained the contributions received from final consumers in so far as they did not cover the operators’ own total additional costs. The CJEU considered this very fact to be irrelevant for excluding state aid (para 27).
Hence, that it is rather the role played by the CDC (administering the accounts and distributing the monies) that must be taken into account than physical presence of money in an account (paras 42 and 47 of the opinion of Advocate General Niilo Jääskinen). And since that body is a public body par excellence, the criterion of state resources is presumed to be satisfied (paras 44 and 47 of the opinion of Advocate General Jääskinen).
This judgment could be seen as a continuation of the Stardust Marine case, which stressed the relevance of public control and availability to the national competent authorities and considered irrelevant the fact that the sums are not permanently held by the Treasury.
However, this judgment leaves some questions open as to the design of measures potentially granting advantages to escape state aid control. Would the conclusion of the CJEU have been the same if the operators obliged to purchase wind power energy at a higher price than market were entitled to levy a markup on every consumer to recover the additional costs? Would not the absence of a specific central administration of such markup have a bigger potential to lead to overcompensation than in the case submitted to the CJEU? Development of legal engineering may lead to more jdgments on the qualification of state resources in the future.
Companies whose business may involve state assistance, in any of its forms, may wish to keep a weather eye.