AG: state aid bill stands on permitted volumes, not actual use

Advocate General Biondi proposed on 5 November 2026Europa, in Case C-424/25 Overgaard Gods v MiljøstyrelsenEuropa, that EU law does not prevent a State aid recovery bill from being computed on the volumes stated in a permit rather than the volumes actually usedEuropa, even where the beneficiary consumed only a small fraction of the permitted amount. The Opinion answers a reference from the Vestre Landsret about the Danish groundwater extraction tax ceiling that Commission Decision (EU) 2018/884 found to be unlawful aidEuropa.

From 2009 to 2011 Denmark levied an annual tax on groundwater extraction permits: full tax on the entire permitted volume for public waterworks, but only one third for other facilities, capped so that permits above 25,000 m³ were taxed as if they covered 25,000 m³, with full exemption up to 6,000 m³. The Commission found the 25,000 m³ ceiling to be incompatible aidEuropa and ordered recovery, with recital 127 fixing the method as the difference between the tax due on the permitted volume and the tax actually paidEuropa. Overgaard Gods, a primary producer holding a 3,000,000 m³ annual permit, extracted 96,033 m³ in 2009, 131,184 m³ in 2010 and 121,036 m³ in 2011, and was ordered in 2020 to repay DKK 922,250 plus interestEuropa. It puts the aid actually received at DKK 28,294.73, arguing that recovery on the permitted volume is disproportionate, unforeseeable and impossible to comply with, since the unused water could only have been consumed by over-watering in breach of fertiliser and nutrient rules.

On admissibility, Biondi rejects the TWD time-bar objection: Overgaard Gods, which never annulled the 2017 decision though entitled to, cannot plead its invalidity now, but the reference asks only about interpretation and application, which remains examinable so long as the decision's binding conclusions are not questioned.

On the merits, the Opinion holds that the calculation method in a recovery decision binds the Member StateEuropa: national authorities must assess each undertaking's situation but must quantify on the Commission's method, and Mediaset, Fossil and Fútbol Club Barcelona authorise no derogation. Proportionality is breached only if repayment exceeds the discounted value of the aid receivedEuropa. The advantage here is the tax exemption created by the ceiling, measured against the tax regime that would have applied without it; recovery of aid granted as a tax advantage restores the tax treatment the transactions would have faced, and restitution targets the advantage procured, not the economic benefit the recipient managed to extract from itEuropa. Low actual consumption therefore does not reduce the billEuropa, and a solo derogation for Overgaard Gods would unequally treat other beneficiaries, some of whom used even less than one third of their volumes.

Biondi closes by acknowledging the severity: at roughly 5% permit use against a 34% primary-production average, recovery is onerous, but onerous is not punitive, and what matters is that it does not exceed the advantage obtainedEuropa.

For the Danish recovery authority and the remaining beneficiaries, the practical point is that consumption evidence does not reopen the calculationEuropa; the only check the referring court performs is correct application of recital 127. Its legal basis is Decision (EU) 2018/884, Articles 4 and 6 with recital 127, and the proportionality principle.