ORDER OF THE GENERAL COURT (Second Chamber)
3 July 2020 (*)
(Action for annulment — State aid — Hellenic Republic — Operators on the market in electricity produced from renewable energy sources — Power purchase agreements — Legislative amendments with retroactive effect limiting tariff advantages — Complaint to the Commission alleging aid in favour of energy suppliers — Decision declaring the aid compatible with the internal market — Status as an interested party — Safeguarding of procedural rights — Inadmissibility)
In Case T‑143/19,
Solar Ileias Bompaina AE, established in Athens (Greece), represented by A. Metaxas and A. Bartosch, lawyers,
applicant,
v
European Commission, represented by K.-Ph. Wojcik and K. Herrmann, acting as Agents,
defendant,
ACTION on the basis of Article 263 TFEU seeking, in essence, the annulment in part of Commission Decision C(2018) 6777 final of 10 October 2018 concerning State aid SA.38967 (2014/NN-2) — Greece — National operating aid scheme in favour of installations using renewable energy sources and highly efficient combined power and heat installations,
THE GENERAL COURT (Second Chamber),
composed of V. Tomljenović, President, F. Schalin (Rapporteur) and P. Škvařilová-Pelzl, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Solar Ileias Bompaina AE, is a producer of electricity from renewable energy sources, active on the electricity market in Greece.
2 On 31 December 2014, the Hellenic Republic informed the European Commission, in accordance with Article 108(3) TFEU, of a legal operating aid scheme in favour of producers using renewable energy sources (‘RES producers’) and producers of high-efficiency combined heat and power (‘CHP producers’) provided for in Nomos 4254/2014, Metra stirixis kai anaptyxis tis ellinikis oikonomias sto plaisio efarmogis tou n. 4046/2012 kai alles diataxeis (Law No 4254/2014, concerning the measures to support and develop the Greek economy, in the framework of the implementation of Law No 4062/2012 and other provisions) (FEK A’ 85/7.4.2014; ‘the new RES Agreement’) which entered into force in April 2014.
3 The Greek electricity market, as organised before and at the time of the entry into force of the new RES Agreement, includes the following categories of market operators:
– generators (and importers) which feed energy into the system;
– the market and system operators in question, which represent the non-competitive part of the market and which purchase the electricity produced by the generators and manage all financial transactions on the market;
– suppliers which purchase electricity from operators in the mandatory pool market and resell it to end consumers.
4 Under the Greek system, RES and CHP producers are remunerated for the electricity produced at fixed prices in the form of feed-in tariffs. Supplier revenues are not fixed and depend on market conditions.
5 In order to finance feed-in tariffs for RES and CHP producers, the special RES account was set up in accordance with Nomos 2773/1999, Apeleftherosi tis agoras ilektrikis energeias - Rythmisi thematon energeiakis politikis kai loipes diataxeis (Law No 2773/1999, concerning the liberalisation of the electricity market – Regulation of questions connected with the energy policy and other provisions) (FEK A’ 286/22.12.99). It was financed mainly by way of a special contribution for greenhouse gas reduction, charged to consumers on each unit of electricity consumed and from other sources such as revenue from RES/CHP market participants.
6 The new RES agreement modified the existing feed-in tariffs for electricity produced in Greece by RES producers and CHP producers whose operators signed power purchase agreements. For certain types of installation, specific technology ceilings, which set the maximum amount of electricity produced by RES producers eligible for support in a given year, have been introduced. The purpose of those ceilings was to limit the overall amounts of aid granted to specific RES technologies.
7 According to the Explanatory Report on Law No 4254/2014, the new RES agreement seeks to eliminate the deficit on the special RES account managed by the Greek electricity market operator and to make that account sustainable. In the period before the entry into force of Law No 4254/2014, the SER special account was in deficit. The deficit was due to a combination of, on the one hand, a sharp increase in expenditure resulting from the considerable rise in the number of power plants using renewable energy sources and combined heat and power plants due to the guarantee of high returns on specific investments and, on the other, the simultaneous decrease or non-equivalent increase in inputs (reduction in the special contribution for the reduction of greenhouse gases imposed on consumers for each unit of electricity consumed due to the economic crisis, decrease in income from electricity sales).
8 Thus, the mechanism of the new RES agreement intended to eliminate the deficit on the special RES account consists in, on the one hand, a reduction of feed-in tariffs to be included in electricity sales contracts (subparagraph IG.1. of Article 1 of Law No 4254/2014) and, on the other, the introduction of rebates on the total value of energy fed into the grid by RES producers and CHP producers in 2013 (subparagraph IG.3 of Article 1 of Law No 4254/2014), in order to offset the overcompensation previously granted.
9 On 6 May 2015, the applicant and another entity lodged a complaint with the Commission under Article 24(2) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9) concerning the measures of the new RES Agreement, alleging that the measures introduced included illegal aid benefiting local energy suppliers. That complaint was registered under case number SA.41794.
10 In its complaint, the applicant argued that electricity suppliers enjoyed a selective advantage because, under Law No 4254/2014, RES producers alone would bear the costs related to the reduction of the deficit on the special account by the introduction of the new RES Agreement. However, electricity suppliers also contribute to the deficit on the special account since the market rules and electricity pricing allow them to purchase at lower costs on the wholesale market and since lower wholesale electricity costs bring less revenue to the special account. In other words, electricity producers and suppliers are, in reality, in a comparable situation as regards the legislative objective of eliminating the deficit on the special RES account. Thus, the new agreement is selective in so far as its scope excludes electricity suppliers, on which there is no obligation to make up the deficit on the special RES account.
11 On 10 December 2015, the Commission received a second complaint lodged on behalf of solar producers and, on 22 December 2017, a third complaint lodged on behalf of the Pan-Hellenic Rooftop Photovoltaic Association.
12 On 10 March 2016, the Commission forwarded the first two complaints to the Greek authorities and requested their observations on the subject matter of the complaints. Their observations were submitted on 27 July 2016. The last complaint was not forwarded to the Greek authorities, because the Commission noted that the issues raised were already covered by the first two complaints.
13 By Decision C(2018) 6777 final of 10 October 2018 concerning State aid SA.38967 (2014/NN-2) — Greece — National operating aid scheme in favour of installations using renewable energy sources and highly efficient combined power and heat installations (‘the contested decision’), the Commission concluded that it did not raise any objection to the scheme provided for in subparagraphs IG.1 and IG.3 of Article 1 of Law No 4254/2014 concerning the new SER agreement which laid down the readjustment of feed-in tariffs for RES and CHP producers in Greece.
14 In recitals 111 to 121 of the contested decision, the Commission examined the allegations made in the complaints, including that of the applicant, and concluded that:
– the complainants did not provide any arguments to support the claim that the electricity suppliers had partially caused the deficit on the RES special account;
– RES producers and electricity suppliers were not in a comparable legal and factual situation;
– the objective of the new RES agreement was to reduce the deficit on the special RES account by offsetting the overcompensation previously granted by the readjustment of feed-in tariffs for RES producers;
– accordingly, the notified scheme did not provide any selective advantage via State resources to energy suppliers and no aid had been granted to them.
15 A summary notification of that decision was published in the Official Journal of the European Union of 7 December 2018.
16 On 18 December 2018, the applicant sent a letter to the Commission, in which it asked whether the Commission regarded Decision C(2018) 6777 final in Case SA.38967 as a formal rejection of the complaint in case SA.41794, or whether it took the view that case SA.41794 was still pending.
17 By letter of 8 February 2019, the Commission replied to the applicant that ‘the decision adopted on 10 October 2018 ... [covered its] complaint. In particular, ... section 3.4 of the decision [covered] in the argumentation the assessment of [the] complaint. On that basis, the Commission [was closing] the complaint’. A non-confidential version of the contested decision was forwarded to the applicant in accordance with Article 24(2) of Regulation 2015/1589.
Procedure and forms of order sought
18 By application lodged at the Court Registry on 2 March 2019, the applicant brought the present action.
19 The defence, the reply and the rejoinder were lodged at the Court Registry on 25 June, 27 September, and 11 November 2019 respectively.
20 The applicant claims that the Court should:
– declare the action admissible and well founded;
– annul recitals 111 to 121 of the contested decision in so far as that decision rejects its complaint, together with the letter of 8 February 2019 (bearing reference B.2 VI/MJ/mkl D*2019/019026);
– order the Commission to pay the costs.
21 The Commission contends that the Court should:
– dismiss the action as inadmissible;
– in any event, dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
22 Under Article 129 of the Rules of Procedure of the General Court, on a proposal from the Judge-Rapporteur, the Court may at any time, of its own motion, after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.
23 In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.
24 Without formally raising a plea of inadmissibility, the Commission has argued in its defence, first, that the letter of 8 February 2019 is not a challengeable act and, second, that the action is inadmissible on the ground of the applicant’s lack of standing to bring proceedings.
25 At the request of the Court, the applicant has stated its position on the alleged inadmissibility of the action in the reply. In that reply, the applicant points out that it is an ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589 and submits that the Commission adopted the contested decision without opening a formal investigation procedure, in breach of the procedural rights of the applicant.
26 As the Commission rightly submits, the letter of 8 February 2019 sending a copy of the contested decision, in accordance with Article 24(2) of Regulation 2015/1589, cannot be classified as a challengeable act. In that regard, it follows from case-law that it is the decision addressed to the Member State which must, if necessary, be the object of an action for annulment brought by the complainant and not the letter addressed to that complainant informing it of the decision (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 45).
27 In any event, it must be noted that the action for annulment does not, in fact, relate to the letter at issue as such. By its action, the applicant seeks, in particular, the annulment in part of the contested decision on the ground that it was taken on the basis of Article 108(3) TFEU without the Commission having first initiated the formal investigation procedure provided for in Article 108(2) TFEU, which would have enabled the applicant to submit observations.
28 Since the decision is a Commission decision on State aid, it must be recalled that, in the context of the State aid control procedure, a distinction must be drawn between, on the one hand, the preliminary stage of the procedure for reviewing aid, instituted by Article 108(3) TFEU, which is intended solely to enable the Commission to form an initial opinion on the partial or total compatibility of the aid in question, and, on the other, the investigation stage, referred to in Article 108(2) TFEU, which is intended to enable the Commission to obtain full information on all the facts of the case. It is only in connection with the procedure laid down in the latter provision that the FEU Treaty imposes the procedural guarantee consisting in the obligation, for the Commission, to give the parties concerned notice to submit their comments (judgments of 19 May 1993, Cook v Commission, C‑198/91, EU:C:1993:197, paragraph 22; of 15 June 1993, Matra v Commission, C‑225/91, EU:C:1993:239, paragraph 16; and of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 35).
29 Where, without initiating the formal investigation procedure under Article 108(2) TFEU, the Commission finds, by a decision based on Article 108(3) TFEU, that a State measure does not constitute aid incompatible with the internal market, the persons intended to benefit from that procedural guarantee may secure compliance therewith only if they are able to challenge that decision before the EU Courts. For those reasons, the EU Courts declare to be admissible an action for annulment of such a decision brought by a party which is concerned within the meaning of Article 108(2) TFEU where it seeks, by instituting proceedings, to safeguard the procedural rights available to it under the latter provision (judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 36).
30 Thus, the view must be taken that any interested party must be regarded as being directly and individually concerned by a decision finding an absence of aid at the end of the preliminary examination phase (see, to that effect, judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 68), it being borne in mind that, where such a party has lodged a complaint, a refusal by the Commission to uphold that complaint must in any event be understood as a refusal to open the procedure laid down in Article 108(2) TFEU (judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraphs 51 to 54).
31 Under Article 1(h) of Regulation 2015/1589, any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid are to be regarded as an ‘interested party’. In other words, that term covers an indeterminate group of addressees. That provision does not, however, rule out the possibility that an undertaking which is not a direct competitor of the beneficiary of the aid may be categorised as an ‘interested party’, provided that that undertaking demonstrates that its interests could be adversely affected by the granting of the aid. It is sufficient for the undertaking to demonstrate to the requisite legal standard that the aid is likely to have a practical impact on its situation (see judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 63 to 65 and the case-law cited).
32 It is in the light of the principles of case-law set out above that the admissibility of the present action should be examined, in particular with regard to the Commission’s plea of inadmissibility.
33 In the present case, first, the parties agree that the contested decision is a decision adopted after the preliminary stage of the procedure for reviewing aid under Article 108(3) TFEU, and not after a formal investigation procedure. Accordingly, it entails an implicit refusal to initiate the formal procedure. Moreover, the refusal to initiate the formal procedure is also apparent from the Commission’s letter of 8 February 2019 (see paragraph 17 above) by which it confirmed that it had closed the applicant’s complaint.
34 Moreover, in so far as the applicant believes that it has standing to bring proceedings by virtue of the fact that it lodged a complaint, it should be noted that the fact that it lodged a complaint under Article 24(2) of Regulation 2015/1589, as is clear from the case-law, is not in itself sufficient to classify it as an interested party (see, to that effect, judgment of 9 July 2009, 3F v Commission, C‑319/07 P, EU:C:2009:435, paragraph 95). In addition, it must be noted that the complaint is not the reason for initiating the preliminary review stage. Law No 4254/2014 was notified to the Commission by the Greek authorities and it was that notification and not the lodging of the applicant’s complaint which made it possible to examine its compatibility with the common market.
35 Second, it must be held that the sole plea put forward by the applicant does indeed concern the infringement of its procedural rights, within the meaning of the case-law referred to in paragraph 29 above.
36 It therefore follows from the foregoing that the admissibility of the action depends, in essence, on whether the applicant has established that it is an ‘interested party’ within the meaning of Article 108(2) TFEU and Article 1(h) of Regulation 2015/1589.
37 In that regard, in order to be able to be classified as an interested party, the applicant must either establish that it is in direct or indirect competition with the beneficiaries of the aid or show that the aid is likely to have a practical impact on its situation, distorting the competitive relationship.
38 First, in accordance with the case-law, where the applicant is a competing undertaking of the company benefiting from the measures complained of, it is indisputably among the interested parties within the meaning of Article 108(2) TFEU (judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 41; see also, with regard to the definition of that concept contained in Article 1(h) of Regulation 2015/1589, judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 59).
39 In the present case, however, it must be held that the applicant is not a competitor of the electricity suppliers which are the beneficiaries of the alleged aid.
40 It is apparent from the structure of the Greek energy market that electricity suppliers purchase energy from a mandatory consortium and sell retail electricity to final consumers, whereas RES producers, such as the applicant, feed energy into the system by selling it to the mandatory consortium.
41 Moreover, the applicant does not deny that electricity suppliers and RES producers operate on separate markets, which is the reason for the lack of competition between them.
42 Second, it is admittedly correct, as the applicant points out in the reply, that the definition of ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589 is not limited to competitors of the aid beneficiary, but refers to an ‘indeterminate group of addressees’. As has been recalled above, that definition includes all persons, undertakings or associations of undertakings whose interests could be affected by the granting of the aid (see judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 63 and 64 and the case-law cited).
43 It cannot therefore be ruled out that the applicant may be regarded as an ‘interested party’ within the meaning of Article 108(2) TFEU and Article 1(h) of Regulation 2015/1589, provided that it shows that its interests could have been affected by the grant of the aid. To do so, it is for the undertaking to show that the aid is likely to have a practical impact on its situation (see, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 66 to 71).
44 It must be held, in that regard, that the applicant has failed to show, to the requisite legal standard, that the alleged aid to electricity suppliers in Greece was likely to have a particular impact on its situation. Admittedly, there is no doubt that Law No 4254/2014, which provides for reduced tariffs for electricity produced from renewable energy sources, adopted in order to reduce the deficit on the special account, has had an effect on RES producers. However, the applicant has failed to demonstrate that there is a correlation between the reduced tariffs for the renewable energy sources and the non-payment of a contribution to the special account by the electricity suppliers, or that the alleged aid to the electricity suppliers could have affected its market position or its interests. For example, the applicant has not explained how the alleged exemption of electricity suppliers by Law No 4254/2014 could have influenced the setting of the new feed-in tariffs and producer rebates, given that the readjustments made by the new agreement were intended principally to offset the overcompensation previously granted to electricity producers.
45 In that context, the applicant relies on the case which gave rise to the judgment of 18 November 2009, Scheuscher — Fleisch and Others v Commission (T‑375/04, EU:T:2009:445), also known as the AMA labels case, and argues that that case has remarkable similarities to the present case. In the AMA labels case, the labels were available to one group of undertakings and refused to another, even though both groups were subject to payment of contributions to Agrarmarkt Austria. The Court attached importance to the fact that all the undertakings belonged to the production and distribution chain specific to the labels in order to recognise that they had standing to bring proceedings.
46 The parallel alleged by the applicant between the present case and the AMA labels case is, however, lacking. In that regard, the applicant claims that the parallel consists in the fact that, in both cases, there is a production and distribution chain and that the companies in that chain are ‘interested parties’. However, the Court held that the applicants in the AMA labels case, in that case undertakings specialising in the slaughter and butchering of animals, were ‘interested parties’ because they were in competition with slaughtering and butchering undertakings entitled to the AMA labels, in the same way as retailers. The applicants’ standing to bring proceedings in that case was therefore recognised not because they were part of the same production and distribution chain as the retailers, but because of their competitive relationship with slaughtering and butchering undertakings. As a result, the aid scheme constituted by the AMA labels granted to the applicants’ competitors was prejudicial to the applicants’ interests.
47 Accordingly, the applicant’s claim, based on the AMA labels case, that its interests were negatively affected by the granting of the alleged aid, in so far as it belonged to a group of undertakings (the RES producers) which had to bear the full costs of reducing the deficit on the special account, while another group of undertakings (the electricity suppliers) was exempted therefrom, despite the fact that both groups contributed to the creation of that deficit, cannot succeed.
48 Accordingly, in the light of the foregoing, therefore, the applicant has not established that it is an ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589.
49 Consequently, the present action must be dismissed as inadmissible.
Costs
50 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
51 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those of the Commission in accordance with the latter’s pleadings.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. Solar Ileias Bompaina AE is ordered to bear its own costs and to pay the costs incurred by the European Commission.
Luxembourg, 3 July 2020.