Request for a preliminary ruling from the Riigikohus (Estonia) lodged on 29 September 2020 – Veejaam AS, Espo OÜ v Elering AS

(Case C-470/20)

Language of the case: Estonian

Referring court

Riigikohus

Parties to the main proceedings

Applicants: Veejaam AS, Espo OÜ

Defendant: Elering AS

Questions referred

Are EU rules on State aid, including the incentive effect required under paragraph 50 of the Communication from the Commission ‘Guidelines on State aid for environmental protection and energy 2014-2020’ ¹ to be interpreted as meaning that an aid scheme which allows a renewable energy producer to apply for State aid after work has started on a project is compatible with those rules where domestic legislation grants every producer which fulfils the requirements laid down by law the right to apply for the subsidy without granting the competent authorities any discretion in that regard?

Is the incentive effect of aid always precluded where the investment on which the aid application is based was made due to a change to the terms of environmental approval, even where, as in this case, the applicant would probably have ceased its activity due to the stricter terms of approval had it not received the State aid?

In light, inter alia, of the findings of the Court in its judgment in Case C-590/14 P (paragraphs 49 and 50), ² where, in a case, such as this one, in which the Commission has adopted a decision on State aid finding that an existing aid scheme and planned changes are compatible with the internal market and the State has announced, inter alia, that it will only apply the existing aid scheme up to a particular cut-off date, the existing aid scheme based on the applicable provisions of law is applied beyond the cut-off date announced by the State, does it qualify as new aid within the meaning of Article 1(c) of Regulation (EU) 2015/1589? ³

Where the Commission decides ex post facto not to raise any objections to an aid scheme applied in breach of Article 108(3) TFEU, are persons with a claim to operating aid entitled to apply for payment of the aid for the period prior to the Commission’s Decision, provided that domestic procedural rules so permit?

Does an applicant which applied for operating aid under an aid scheme and which started to implement a project which fulfilled the criteria for compatibility with the internal market at a time when the aid scheme was lawfully applied, but applied for the State aid at time when the aid scheme had been extended without notifying the Commission, have a claim to State aid notwithstanding the rule enacted in Article 108(3) TFEU?

____________

¹ OJ 2014 C 200, p. 1.

² Judgment of the Court of Justice of 26 October 2016 DEI v Commission (C-590/14 P, ECLI:EU:C:2016:797).

³ Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).