A. Transfer of state resources 

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“By state or from state resources” is a key element in order to classify the measure as state aid. According to the Commission, “State aid rules cover only measures involving a transfer of State resources (including national, regional or local authorities, public banks and foundations, etc.). Furthermore, the aid does not necessarily need to be granted by the State itself. It may also be granted by a private or public intermediate body appointed by the State. The latter could apply in cases where a private bank is given the responsibility to manage a state funded SME aid scheme. Financial transfers that constitute aid can take many forms: not just grants or interest rate rebates, but also loan guarantees, accelerated depreciation allowances, capital injections etc”.

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In the famous ruling PreussenElektra from 2001, the Court held that “the obligation imposed on private electricity supply undertakings to purchase electricity produced from renewable energy sources at fixed minimumprices does not involve any direct or indirect transfer of State resources to undertakings which produce that type of electricity”. The ECJ referred to its case-law which had shown that “only advantages granted directly or indirectly through State resources are to be considered aid within the meaning of Art. 92 para. 1 (now Art. 107 para. 1). The distinction made in that provision between 'aid granted by a Member State' and aid granted 'through State resources' does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State”. In this case, the Court´s decision upheld that “the allocation of the financial burden arising from that obligation for those private electricity supply undertakings as between them and other private undertakings cannot constitute a direct or indirect transfer of State resources either”.

B. State guarantees 

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The question is further clarified by the Commission Notice on the application of Art. 87 and 88 of the EC Treaty (now Art. 107 and 108 TFEU) to State aid in the form of guarantees. Accordingly, “(t)he benefit of a State guarantee is that the risk associated with the guarantee is carried by the State. Such risk-carrying by the State should normally be remunerated by an appropriate premium. Where the State forgoes all or part of such a premium, there is both a benefit for the undertaking and a drain on the resources of the State. Thus, even if it turns out that no payments are ever made by the State under a guarantee, there may nevertheless be State aid under Art. 87 para. 1 (now Art. 107 para. 1) of the Treaty. The aid is granted at the moment when the guarantee is given, not when the guarantee is invoked nor when payments are made under the terms of the guarantee. Whether or not a guarantee constitutes State aid, and, if so, what the amount of that State aid may be, must be assessed at the moment when the guarantee is given.”

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