Ayudas de estado y sistemas de apoyo a las energías renovables: un análisis de los beneficios fiscales para promocionar los biocarburantes previstos en la directiva sobre imposición energética
- Autores: Alvaro Antón Antón
- Directores de la Tesis: José Vicente Pedraza Bochóns (dir. tes.), Iñaki Bilbao Estrada (codir. tes.)
- Lectura: En la Universidad CEU - Cardenal Herrera ( España ) en 2013
- Idioma: español
- Tribunal Calificador de la Tesis: Juan Bautista Martín Queralt (presid.), Marta Villar Ezcurra (secret.), Pasquale Pistone (voc.), Germán Orón Moratal (voc.), Amparo Navarro-Faure (voc.)
- Materias:
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- Resumen
Since the end of the 1990s, as a result of the ratification of the Kyoto protocol, the fight against climate change has become one of the priorities on the EU agenda, which is a commitment to fight against this phenomenon by reducing greenhouse effect gas emissions to a level that limits the rise in temperature to 2°C if compared with preindustrial levels.
In line with this, the EU is well aware that, among its Member States, the energy sector is the principal cause of climate change because energy supply and energy consumption, including transport, represent 80% of its total CO2 emissions. Nevertheless, other than the global warming problem our planet faces, EU Member Statse face an even greater energy problem which, in this case, derives from their strong dependence on non-EU countries. This dependence, which also entails a risk for EU Member States¿ energy supply, can become a competitive disadvantage for European firms as they can become overexposed to volatile prices in international energy markets.
In the light of these problems, the EU has set up a new energy strategy for the 21st century by means of which it intends to strike a balance among objectives of sustainable energy use, competitiveness and secure supplies. According to the Commission, these objectives expect an approach to be adopted that integrates specific goals into various domains as it considers that no element of energy policies and of the fight against climate change is capable of answering all the questions on its own.
Thus during a meeting in March 2007, the European Council defended the need to develop a sustainable, integrated European climate and energy policy by considering that, by bearing in mind the responsibility that energy production and usage have on CO2 emissions, and in order to meet the CO2 emissions reduction objective, an integration of the policies into the climate and energy domain was necessary so that both reciprocally fortify each other.
To be able to face these new challenges, the European Council, on behalf of the EU, made a commitment to firmly and independently achieve a 20% reduction in greenhouse effect gas emissions by the year 2020 if compared to 1990, accomplish a 20% saving in total EU energy consumption by 2020, and meet the twin binding objective of reaching not only the 20% mark of using renewable energy in total energy consumption, but also 10% in transport, by 2020.
As regards this last objective, it is necessary to demonstrate that promoting biofuels can become a valid option to integrate community policies on matters concerning the fight against climate change and secure energy supplies basically due to the environmental and energy advantages that these energy products offer if compared to conventional fossil fuels.
For this reason, initiatives to promote the production and use of biofuels have been on the community policy agenda for a few decades now.
Nowadays, the Commission has adopted a more rigorous framework to boost the development of this type of energy products by means of European Directive 2009/28/EC of the European Parliament and the European Council of 23 April 2009, on the promotion of the use of energy from renewable sources, and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (referred to as European Directive 2009/28/EC henceforth).
This Directive enforces that all EU Member States achieve a 20% share of energy from renewable sources in their energy consumption and a 10% share of energy from renewable sources in their consumption of transport fuels in the EU by 2020.
Nevertheless, this boost in fuels from renewable energy sources, as with the remaining renewable energies, faces an economic problem, which makes its development difficult as opposed to energy products produced from sources of fossil fuels. Basically, this problem is due to there being a series of market failures associated with what is known by Economic Science as externalities. With renewable energies, Economic Science talks about positive externalities, generated as the result of the incapacity of this type of energies to reflect the positive effects that their development has for society in their final price.
Economic Science also speaks of negative externalities, these being a market failure which comes about because conventional energy products do not reflect the harm that their production and consumption have on the natural environment and, therefore, on society in their final price.
Of the noted market failures, failure to internalise damage to the natural environment caused by energy products deriving from fossil fuels can determine the first link among the objectives there are to fight against climate change and to promote renewable energies. This is because if Member States intervened to overcome this shortcoming in the market, it would help accomplish climate objectives, and also energy ones indirectly. Specifically by rigorously applying the ¿polluter pays principle¿, it would be possible to achieve that the market price paid for energy products would reflect the various performances that conventional energies present as compared to renewable ones in emissions terms. This, in turn, would not only help drive the conduct of economic factors towards less polluting energy sources, but would also promote a more responsible, economic and rational energy use.
In order to achieve the internationalisation of costs that the various energy types entail for society at the community level, and with a view to making polluters adhere to the ¿polluter pays principle¿, the use of economic instruments has been resorted to, which are based either on quantities, such as negotiable permit policies, or prices, such as environmental tax. Specifically, the European Emission Rights Trading Scheme (hereafter ETS) is currently applicable in the EU and is governed by European Directive 2003/87/EC of the European Parliament and of the European Council, of 13 October, to which electric power producers are submitted. Furthermore, a series of energy taxes at the community level is imposed on energy products and electricity, these being state taxes introduced to fulfil the minimum taxations established by Council Directive 2003/96/EC, of 27 October 2003, on restructuring the Community framework for the taxation of energy products and electricity.
Nonetheless, the current outline of both instruments has not allowed a sufficient degree of internalisation to be achieved to guide consumer habits towards more ecological fuels such as biofuels.
With the ETS, the failure of the main polluter payer referred to is basically due to the fact that, in its initial phase, Member States freely assigned emission rights to firms in the electric sector. Thus it cannot be stated that the firms of this sector are paying for the CO2 emissions they emit into the atmosphere.
Furthermore, sectors like transport are beyond the scope of this instrument; the transport sector produces one fourth of EU CO2 emissions. Of these emissions, the aviation sector is responsible for 12.8%, maritime transport represents 13.5% of them, rail transport produces 0.7%, domestic navigation is 1.8%, and, finally, road transport represents 71.3%.
This situation will change, in part, as from 2013 when the new directive comes into force: Directive 2009/29/EC of the European Parliament and of the European Council of 23 April 2009, on amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community. This is because, firstly, a new system of assigning emission rights by means of tenders will be introduced for firms in the electric sector as of 2013 through this Directive and, secondly, because the aviation sector has finally been included in the ETS¿s area of application.
Notwithstanding, even though it can be endorsed that an optimum internalisation level will be accomplished in the electric sector as of 2013, the ETS will continue to leave, among others, road transport (the second most important sector as far as EU CO2 emissions are concerned) beyond its area of application. This situation, however, will not apparently change in the short- or mid-term if we bear in mind that the Directive regulating the ETS justifies the exclusion of ¿fuzzy¿ sectors such as road transport from its area of application, mainly owing to the difficulty that measuring and controlling its emissions entail.
However the fact that the road transport sector is not included in the ETS does not mean that Member States must not accomplish significant reductions in their CO2 emissions in relation to the ETS. Among other reasons, it is necessary that all the sectors of the EU economy, and not just those covered by the ETS, invest efforts to reduce greenhouse effect gases (GEG) to meet the emission reduction objective set by the EU. For this reason, and by means of Decision 406/2009/EC of the European Parliament and of the European Council, of 23 April 2009, on the effort of Member States to reduce their greenhouse gas emissions to meet the Community¿s greenhouse gas emission reduction commitments up to 2020, a global emission reduction of approximately 10% by 2020 has been included, if compared to 2005, for all the sectors not included in the ETS, such as circulating vehicles.
Currently, for the purpose of road transport contributing to meet the objectives set by this Decision, a large number of legal measures has been taken at the community level, which come in the form of regulations on the performance of emissions from vehicles or on fuel quality, and is intended to reduce CO2 emissions of both vehicles and fuels. Nevertheless, and bearing in mind that Member States will also have to reach the binding objective of the 10% increase in the renewable energies used in road transport, it is necessary to combine these regulating norms with other economic instruments that help integrate both objectives.
This integration could be achieved by means of the economic instruments that complement the ETS, such as taxes on energy products, because these could help make the ¿polluter pays principle¿ effective in the road transport sector, thus accomplishing the same effect as in the ETS. In other words, they could be used to correctly fix prices so that consumers¿ conduct entails the use of more ecological fuels. All this would simultaneously help meet the emission reduction objectives and promote renewable energies in road transport.
Thus, the tax system, by means of the extrafiscal tax function, is set up as an instrument available to Member States to reduce CO2 emissions and to promote use of renewable energies in transport; this is because the CO2 emissions generated by burning fossil fuels in road transport can be taxed through taxation schemes, e.g., taxes placed on energy products, thus discouraging the use of such fuels. Hence, energy taxes on CO2 will help meet the reduction objectives directly in this sector and to indirectly favour the use of products from renewable energy sources such as biofuels.
As previously mentioned, an instrument already exists at the community level with which this complementation may be accomplished, this being Directive 2003/96/EC, whose objective is a community-scale tax for energy products. Yet we have already observed that, like the ETS in its initial phase, this Directive¿s present outline has not permitted suitable energy taxes to be set up to introduce sufficient landmarks in prices in order to bring about a change in the conduct of economic factors. So the structure that this Directly currently takes has led to energy taxes being presently introduced by EU Member States to meet the minimum taxes imposed in order to not fulfil the discouragement task that an environmental tax assumes, whose main task in most cases is revenue which, at the same time, negatively affects the market penetration of biofuels.
In light of this, the chief problem which biofuels promotion faces is none other than the very purpose of Directive 2003/96/EC because this Directive essentially seeks the harmonisation of minimum taxes applicable to most energy products with a view to guaranteeing adequate internal market operations. Therefore, its logical basis is to tax all energy products irrespectively of whether their sources are fossil or renewable; but then environmental matters move to the background.
Furthermore, among the reasons which may evidence that this Directive lacks a true environmental component, we find that it does not consider the particular characteristics of biofuels. This is firstly deduced from the tax treatment stipulated in Directive 2003/96/EC for biofuels, based on volume and on the rate applied to a fossil fuel product substituted for one of a renewable kind which results in a larger tax burden for biofuels than for fossil fuels.
Thus biofuels find themselves at disadvantage in competitive terms if compared to fossil fuels. This is firstly because biomass-related fuels have lower energy contents per quantitative unit. Consequently, a larger amount of these fuels is needed to produce the same energy as a smaller quantity of conventional fossil fuels. Secondly, Directive 2003/96/EC neither takes into account the benefits of biofuels in terms of reduced CO2 emissions nor considers secure supplies if compared with conventional fossil fuels.
So what all this entails is that Member States have to amend this situation by adapting the tax procedures stipulated in the Energy Taxation Directive to biofuels and by compensating the difference to the production costs between biofuels and conventional energy products. To go about this, Member States must resort to the possibility offered in Article 16 of Directive 2003/96/EC; that of introducing tax relief into energy taxations favouring biofuels. That is to say, until an adequate discouragement measure is introduced to bring about a change in individuals undertakings and economic factors, the extrafiscal tax function will be set up as a necessity, in this case, to directly encourage any conducts respecting sustainable development.
In the light of these shortcomings, and for the energy tax regulation to become a truly discouraging measure for the use of conventional energies, a profound amendment in the Directive¿s current outline will be necessary, as the European Commission proposes. This amendment should aim to set up a taxation scheme for energy products which contemplates both the environmental performance of each product and the specialities of products deriving from primary energies from renewable sources; e.g., biomass.
Along these lines, the Commission has proposed reconsidering the failed proposal of 1992 and dividing energy tax regulations into two components. The purpose of one would be environmental, which would consider the performance of each energy product in emissions terms; the second would respond to both the revenue scheme of Member States and the harmonising scheme of the EU by taxing all energy products according to their energy content, irrespectively of their environmental considerations. Yet the unanimity requirement demanded by the Treaty on EU Functioning (hereafter referred to as TFEU) to adopt any agreement on taxation matters means that the approval of this modification is taking too long, and when the definitive agreement will be adopted remains unknown. Consequently, Member States still believe that it is necessary to resort to the possibility of conferring tax allowances to biofuels, as Article 16 stipulates, in order to meet community objectives in renewable energy matters in the transport sector.
Yet despite the objective of the cited Article 16 of Directive 2003/96/EC being to reach a clearly community objective, like promoting biofuels, its inclusion in Member States¿ energy taxes has to be studied in the light of it being forbidden to grant the state aid indicated in Article 107, Section 1 of the TFEU. So based on the analysis of both the Court of Justice of the EU¿s (hereafter referred to as CJEU) jurisprudence and the Commission¿s decisions, it is verified that either the environmental objective or the form that any public incentive takes will be irrelevant when the Commission classifies it as ¿state aid¿ or not. Therefore, it will be necessary to analyse the limits that the TFEU imposes in such interventions.
Hence, it is necessary to demonstrate that the control of state aids at the community level is an essential component of the competition policy and a necessary safeguard for effective competition and free trade. For this reason, Article 107, Section 1, of the TFEU states that ¿save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which adversely affects or threatens to adversely affect competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market¿. The task of controlling state aids has been entrusted to the Commission through Article 108 of the TFEU, which expects Member States to inform of any state aids project to the cited community institution well in advance.
However in the community state aids policy domain, the Treaty authors did not consider submitting all the state aids granted to firms to the Commission¿s control, but only those which fulfilled all the requirements set out Article 107, Section 1, of the TFEU. For this reason, only one measure could be classified as state aid and could, therefore, be subject to the Commission¿s control if it accumulatively fulfils the following conditions: 1) it confers a selective economic advantage; 2) this advantage is financed with state resources; 3) it adversely affects or threatens to adversely affect competition and, finally, 4) it affects trade between Member States.
What this means is that certain forms of intervention promoting renewable energies in general, and biofuels in particular, might not be considered state aid, even if they confer an advantage that adversely affects competition and affects trade between Member States. In the biofuels promotion domain, this situation may arise in relation to the ¿Biofuel supply obligations¿ introduced by Member States as a system to support this type of energy products. Therefore, as it is a system which obliges fuel suppliers to include a given percentage of biofuels in their offer, it might be understood that a transfer of public funds does not occur. Therefore the measure does not meet all the elements set out in Article 107, Section, 1 of the TFEU. Nevertheless, the same does not apply to the case of the tax allowances stipulated in the Energy Taxation Directive to promote biofuels because, as this work attempts to corroborate, the Commission will always consider that this type of measures fulfils all the elements set out in Article 107, Section, 1 of the TFEU.
Consequently, only those state aids which satisfy the criteria included in Article 107, Section, 1 of the TFEU will, in principle, be incompatible with the common market because the purpose that Member States pursue with these measures makes no difference since both the Commission and community jurisprudence maintain an objective concept of what must be understood as state aid. In other words, the Commission will not take into account the purpose of state aid when it considers whether or not it is an economic benefit for certain firms or productions, whether or not it has been financed by state funds, and whether or not it can affect the internal market and adversely affects competition. The objective and purpose of state aid will be taken into account when the Commission assesses if the measure, even though it complies with all the above-mentioned elements, can be declared exceptionally compatible with the Treaty.
From all this, it can be gathered that the prohibition mentioned in Article 107 is neither absolute nor unconditional because, in some cases, community objectives themselves will expect the State to intervene by granting aids. One example of this extreme case can be found in the new sustainable energy policy approach because, according to Directive 2009/28/EC, Member States have to adopt and design the measures needed to guarantee that the share of energy from renewable energies in transport meets the 10% objective by 2020.
As mentioned earlier, the intervention of Member States in this case is justified from an economic viewpoint.
Consequently, Sections 2 and 3 of Article 107 of the TFEU, along with the initial prohibition of granting aids, establish a series of exceptions to the general rule, within which we can frame certain state aids for environmental protection. Specifically, the most important exception in the area of state aids for environmental protection purposes is that stipulated in Article 107, Section 3, Letter c), which refers to an ¿aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest¿.
Without prejudicing the existence of these exceptions, it will be necessary in any case to conciliate the legal authority of the Member State¿s economic intervention to adopt certain policies, such as those relating to environmental protection, with the achievement of common market. For this reason, and for the purpose of ensuring that that set out in Articles 107 and 108 of the TFEU is fulfilled, a control and previous authorisation procedure for state aids is foreseen in which the Commission plays a key role.
By means of this procedure, the Commission will have to firstly determine if the objective of the state aid can be considered of common interest; that is, if it can be framed within any of the exceptions of Article 107.3 of the TFEU. Secondly, it will evaluate the acceptability of state aids, so the Commission can weigh up the negative effects of state aids on the trade and competition in the common market, with their positive effects in order to achieve a clearly defined objective of common interest.
As regards the state aids for environmental protection among those for promoting renewable energies, in the above-mentioned case, they are declared as being compatible with the common market when passing the ¿balancing test¿, this being the result of the new economic approach to evaluate the compatibility of state aid that is defended in the State Aid Action Plan. In particular, and in accordance with the above-mentioned test, the state aids for promoting renewable energies will be declared compatible when they prove they increase environmental protection activities without adversely affecting trading conditions against common interests. In other words, whenever they are necessary and proportional to meet the community objective in renewable energy matters.
In order to confer transparency, foresight and legal certainty to the whole state aid evaluation process, the Commission has informed about the criteria to be adopted to determine if a notified state aid meets all the requirements to claim an exception. In particular, the criteria to evaluate the compatibility of the state aids for promoting renewable energies have been published in the Community Guidelines on state aid for environmental protection, in the Official Journal of the European Union 2008/C 82/01 (hereinafter, the 2008 Environmental Guidelines). Thus in Chapter 3 of these Guidelines, the Commission identifies a series of measures which consider a priori that state aid is destined to face market failure, which either hinders environmental protection or improves the environmental protection level. Likewise, the Commission has established a series of conditions and parameters to ensure that state aids genuinely have an incentive effect, are proportional and that their negative effects on competition and trade are limited. Specifically, Chapter 3 of these Guidelines specifies some parameters relating to supported activity, the intensity of state aid and the conditions upon which its compatibility is subject to. According to these Guidelines, operating state aids for promoting renewable energies, which will include the stipulated tax allowances for promoting biofuels, could be authorised if the object is to cover the difference between the cost of producing energy from renewable energies and the market price of the energy being dealt with.
Consequently, when it comes to designing any system that promotes alternative energies, such as tax reliefs for environmental purposes, it is convenient that Member States follow the Commission¿s practice which relates to this type of state aids so that it can be authorised by this community institution.
Furthermore, the study of the tax allowances set out in the Energy Taxation Directive from the regulatory viewpoint of state aid, become most important from the time that the prohibition set out in Article 107, Section 1, of the TFEU is rigorously applied, could lead the Commission to stop Member States from continuing to resort to this type of tax reliefs to promote biofuels in the future. This is because the community institution could interpret that such tax reliefs are no longer necessary to meet community objectives. Specifically, this situation could happen in two cases: firstly in the assumed case that Directive 2003/96/EC finally introduces the amendments required to consider the particular characteristics of biomass-based fuels or products in relation to what they contribute to reduce CO2 emissions and to their lower energy content.
The second case, which could occur irrespectively of the Energy Taxation Directive finally being amended or not, relates to the fact that most Member States, while exercising the freedom that Directive 2009/28/EC confers, have opted to promote biofuels by basically using two instruments: the tax allowances linked to Article 16 of Directive 2003/96/EC; and the obligation of distributors and suppliers of fuel to incorporate a percentage of these products into the market. More specifically in those cases in which these two mechanisms are simultaneously applied, the Commission could interpret that the obligation of commercialising biofuels suffices to meet the community objective in renewable energy matters in transport; therefore, it is possible that it does not authorise the tax allowance because it would consider the state aid unnecessary.
Consequently, the present situation and interest of this research work are justified by the role that energy taxation could play to meet the new objectives set by the EU by 2020 in the fight against climate change and to promote renewable energies. There is also an interest in the protagonism that carrying out tax allowances according to Directive 2003/96/EC entails to promote biofuels in order to meet the objective of the 10% use of renewable energies in transport. All this is contemplated from the perspective of a theme that has increasing incidence on the outline taken by Member States¿ tax-paying power; for example, prohibition of granting the tax allowances that comply with the elements set out in Article 107 of the TFEU.
To address this theme, a work systematically arranged into three parts has been chosen.
In the first part, which Chapter 1 addresses, the work commences by presenting EU objectives in the energy field and the fight against climate change as a previous step to centring the work on the renewable energies domain, specifically on biofuels. After analysing the community objectives and policies in this domain, we look at the reasons that justify state interventionism to promote this type of energies.
Having put forward the reasons that justify Member States¿ intervention to promote renewable energies, we focus on the main economic instruments employed by EU Member States to promote this type of energies. To go about this, and following the economic principle, we divide them according to their direct or indirect nature.
Thus, in the first place, we analyse the role and outline of those economic instruments at the European level to flexibly mitigate CO2 emissions deriving from activities relating to electric power production and transport, among others. This approach is based on the principle that considers instruments such as energy taxation or the ETS, which were not introduced to only indirectly face climate change, but can promote renewable energies directly.
In particular, we demonstrate the complementary role that energy taxation could play to help make the ¿polluter pays principle¿ become effective in the road transport sector, which would help promote alternative fuels indirectly. So we analyse the current Directive structure and we centre on its inconsistencies in promoting less polluting energies. Finally, we propose an amendment to it.
Notwithstanding, as we understand that for an energy taxation to be set up as a true instrument to complement the ETS in the transport sector, it is necessary to coordinately use with it, the study into the purpose of amending the Energy Taxation Directive along with another study on the role played by tax allowances with a view to coordinating both instruments. This coordination mechanism is also analysed from the regulatory perspective on state aid in Chapter IV of this work.
In this sense, it is necessary to demonstrate that the study object of the present work is mainly the state aids favouring biofuels, which take the form of tax allowances and are adopted by Member States by virtue of the Energy Tax Directive, these being state aids that the Commission classifies as ¿operating aids¿ because they do not relate directly with an investment project. However, we consider that the study into the cited coordination mechanism between instruments is justified given the parallelism it has with energy taxation and its role in making the ¿polluter pays principle¿ effective in the transport sector. In our mind, the fact that some Member States make the firms subject to both instruments exempt from energy taxes converts such tax allowances into another biofuels promotional system because, given the current Directive 2003/96/EC outline, if this possibility did not exist, Member States would be even more reluctant to devise energy taxes which consider the performance of fossil fuels more directly in terms of CO2 emissions and to, therefore, help promote biofuels.
Having analysed the role and outline of the instruments which indirectly develop renewable energies, we do the same with those systems that directly support the development of these energies. We group these instruments into two groups according to the primary or secondary role that each plays in the policies that Member States introduce to meet community objectives in the renewable energies domain. For the purposes of this study, within the main support frameworks, we include bonuses- or rates-based systems, negotiable systems of shares and green certificates, and public tenders systems. Within the secondary support frameworks, we include voluntary instruments, investment subsidies and tax allowances.
Yet despite tax allowances having a secondary character in the renewable-based electricity promotion concept, biofuels occupy a very important leading position. In particular, this circumstance emerges when such tax advantages are foreseen in the energy taxes introduced by Member States to cover the minimum taxes set in Directive 2003/96/EC.
For this reason, we analyse the role of these instruments separately.
Purposely after analysing the previous matters, we centre on a specific study of the two instruments which Member States resort to in order to promote renewable energies in transport, these being biofuel commercialisation obligations and the expected tax reliefs on energy taxes.
Consequently in this first Chapter, which is mainly theoretical, streamlining and systemisation are carried out of the material studied relating to the proposed theme by employing the theoretical and conceptual constructions of a doctrinal origin, which help us contextualise the main role of the present work; that is, the problems that the tax allowances stipulated in the Energy Taxation Directive present when promoting biofuels from the community regulations perspective in relation to the prohibition to grant ¿state aid¿.
After having contextualised and defined the study object, the second part of this work, which corresponds to Chapter II, examines whether the analysed measures comply with the elements expected by Article 107.1 of the TFEU. The third part of this work, covered by Chapters III and IV, looks to see if the tax allowances foreseen to promote biofuels can be stated as being compatible with the Treaty based on some of the exceptions that this above article mentions. With this methodology, we aim to reproduce the two compatibility test phases to which the Commission submits state aid, these being: to firstly analyse if a measure can be classified as state aid without bearing in mind its objective or purpose; secondly, to evaluate the compatibility of the measure classified as state aid with the common market.
Since it would prove anachronistic to limit our study to a Directive for which an amendment has been proposed, when addressing all these parts, we extrapolate the experiences deriving from the CJEU¿s jurisprudence and the Commission¿s principle to new assumptions that might arise if the proposed amendment of the Energy Taxation Directive is approved.
We dedicate an initial part of Chapter II to approach the state aid concept, its objective character and the incidence its regulations have on state aids within such promotional systems. Next, we study the general principle relating to all the elements that a measure must meet for the Commission to declare it as state aid. In other words, we analyse in the second part of Chapter II the criteria that the institution entrusted with the task to control that the applications set out in Article 107 of the TFEU are indeed applied, based on the Commission¿s principle and on community jurisprudence, when a decision must be made as to whether the measure conferring an advantage or economic benefit to a firm is selective, is financed with public funds and if it adversely affects competition and trade.
As we advance into the study on all these elements, into which we attempt to integrate matters relating to the measures adopted to promote renewable energies and to protect the natural environment, we will stop and study the application of these elements to the tax allowances that enable the introduction of the Energy Taxation Directive to promote biofuels.
The intention here is to know how this type of measures is dealt with from the state aid regulation perspective in not only the present-day, but also in the hypothetical case that the amendments proposed by the Commission actually come into effect.
Having analysed this matter, we will study the compatibility of these measures in the light of the Community Guidelines on state aid for environmental protection.
To this end, Chapter III studies the exceptions to the general rule of incompatibility that Article 107, Section 1, of the TFEU establishes. In particular, the intention is to determine the basis of which exceptions state aids, which are the study object in the present work, can be declared as being compatible with the common market.
Next we deal with the task of delimiting the Commission¿s role in evaluating the compatibility of state aids. This can be done by addressing the obligation that Member States have of notifying state aid projects before introducing not only such projects, but also the exceptions to this obligation and, finally, the appreciation faculties about which the Commission has to decide their compatibility.
Having analysed the role that this community institution plays, we now go on to study the methodology that it applies to evaluate the compatibility of state aids. At this point, we intend to examine how this methodology has been affected by the State Aid Action Plan, according to which economic criteria must play a leading role in evaluating the compatibility of state aids. It is essential to study this new economic approach in order to be able to understand the logic behind the ¿balancing test¿, a test done by the Commission when it evaluates the compatibility of state aids, whose analytical principles have been expressed in, among others, the 2008 Environmental Aid Guidelines.
Thus, the specific study of these various elements making up this test is to be done in the above-cited Environmental Aid Guidelines context, although beforehand, we look at the nature and effects of this type of ¿soft law¿ documents approved by the Commission, which include the criteria that this institution adopts when it declares if a state aid is, or is not, compatible with the Treaty.
After examining the 2008 Environmental Aid Guidelines, Chapter IV looks not only at the practice that the Commission follows when it has to evaluate the compatibility of those state aids for promoting biofuels marked as tax allowances, but also at those cases in which the tax allowances mentioned in Directive 2003/96/EC apply simultaneously with an obligation to incorporate biofuels into the market.
Finally, another part of this last Chapter looks at the incidence that community state aid regulations have on tax allowances to coordinate the Energy Taxation Directive and the ETS introduced by Member States.
Thus it can be deduced that we decided to not carry out a detailed study into the procedural rules applying to state aids, save in those cases in which it is fundamental to facilitate an understanding of the matters being dealt with because, as we see it, these rules are not conditioned by the environmental nature of state aids; hence it is possible to study them separately without impinging upon the understanding and study object of the present research work.
As regards the legal dogma, the predominating methodological option taken in the present study has to necessarily examine the Commission¿s practice and the CJEU¿s jurisprudence with no detriment to considering the doctrine a means of critically evaluating current law and an instrument required to analyse, describe and systemise the theme under study. This choice enables us to examine both the CJEU and Commission¿s practice in the state aids field separately from any other former doctrinal conception which, in turn, helps determined those criteria to guide these institutions in their decision making.
Consequently in order to prepare this work, particular interest is shown in the doctrinal and practical material deriving from community institutions, which we have attempted to systemise and adapt to our study object. In this sense, the decisions made by the Commission, the CJCE¿s jurisprudence, the General Court¿s (GC) jurisprudence, and those relating to the communications and rules adopted at the community level, will prove particularly useful.
Other than this matter, the chosen subject also conditions the choice of knowledge sources to be employed for two basic reasons: firstly because it will prevent us from limiting ourselves to national knowledge sources. Thus along with these, we have to resort to knowledge from the community domain and, in some cases, from the international domain; secondly, the chosen subject also interferes with confining the study of sources from the law domain, which means that we have to use works from other scientific domains, mainly the economic domain.
Likewise, given the nature of the problem presented and the supranational level in which decisions are made in this domain, we opted to refer to internal Spanish Law periodically. This methodological option allows us to draw general criteria that are not confined to a specific territorial domain, but can be taken into account in any EU Memb
