Appeal brought on 21 November 2019 by FVE Holýšov I s. r. o. and Others against the judgment of the General Court (Seventh Chamber) delivered on 20 September 2019 in Case T-217/17, FVE Holýšov I s. r. o. and Others v Commission

(Case C-850/19 P)

Language of the case: English

Parties

Appellants: FVE Holýšov I s. r. o., FVE Stříbro s. r. o., FVE Úsilné s. r. o., FVE Mozolov s. r. o., FVE Osečná s. r. o., Solarpark Rybníček s. r. o., FVE Knĕžmost s. r. o., Hutira FVE - Omice a.s., Exit 90 SPV s.r.o., Onyx Energy s.r.o., Onyx Energy projekt II s.r.o., Photon SPV 1 s.r.o., Photon SPV 3 s.r.o., Photon SPV 4 s.r.o., Photon SPV 6 s.r.o., Photon SPV 8 s.r.o., Photon SPV 10 s.r.o., Photon SPV 11 s.r.o., Antaris GmbH, Michael Göde, NGL Business Europe Ltd, NIG NV, GIHG Ltd, Radiance Energy Holding Sàrl, ICW Europe Investments Ltd, Photovoltaik Knopf Betriebs-GmbH, Voltaic Network GmbH, WA Investments-Europa Nova Ltd (represented by: A. Reuter, H. Wendt, C. Bürger, T. Christner, W. Schumacher, A. Compes, T. Herbold, Rechtsanwälte)

Other parties to the proceedings: European Commission, Czech Republic, Kingdom of Spain, Republic of Cyprus, Slovak Republic

Form of order sought

The appellants claim that the Court should:

quash the judgment under the appeal;

uphold their application against the Commission Decision C(2016) 7827 final of 28 November 2016 on State aid SA.40171 (2015/NN), concerning the promotion of electricity production from renewable energy sources, a summary of which has been published in the Official Journal of the European Union¹ , or alternatively

refer the matter back to the General Court;

order defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The appeal concerns (i) the term “state aid” in privately financed renewable energy schemes, (ii) the reliability of defendant’s decisions for EU citizens, (iii) the protection of their legitimate expectations against defendant’s about-turns and (iv) the limits to the abuse by defendant of its powers. The appellants rely on eight grounds of appeal.

First ground of appeal: The General Court’s finding that defendant’s letter of July 2004 to the relevant industry associations does not constitute a binding decision (a) misconstrues and infringes the Court’s case-law on the question what constitutes a decision and (b) was made at in breach of procedure adversely affecting the appellants.

Second ground of appeal: The appellants pleaded that the defendant was bound by a non-aid decision, which it made in 2006 (the “2006 Decision”). The General Court’s finding that such plea was inadmissible because (i) the appellants “failed to precisely identify that decision” and (ii) the plea had been made only in the Reply, infringes (a) the Court’s case-law requirements for a decision to be at hand and (b) is in breach of procedural rules.

Third ground of appeal: The General Court’s denial of the appellants’ legitimate expectations that the defendant will maintain its 2004 Decision, its 2006 Decision, and its conduct shown from 2004 until the contested decision of 2016 is wrongful. First, it fails to take into account the circumstances of the case although they are undisputed and infringes the Court’s case-law on the requirements for legitimate expectations. Second, it is based on breaches of procedure.

Fourth ground of appeal: The General Court’s finding (at 86-127) that the Original Promotion Scheme constitutes state aid misconstrues the term “state aid”. Pursuant to the Court’s case-law, the Original Promotion Scheme did not involve state resources, which is true irrespective of whether or not the increase of energy prices for renewable energy cost constituted a “levy”. Furthermore, even if one were to consider the existence of a “levy” to be decisive (quod non), the General Court finding of a “levy” to exist infringes EU law and is based on breaches of procedure.

Fifth ground of appeal: By their fourth plea the appellants claimed before the General Court that the defendant imposed overreaching requirements in its compatibility assessment of the measures at issue with the internal market. The General Court (at 130-136) dismissed that plea as it considered that the relevant requirement of a “review mechanism” had not been “imposed” by defendant and that it was in line with the 2008 Community Guidelines on State aid for environmental protection² . This infringes EU law.

Sixth ground of appeal: By the first part of their fifth plea, the appellants maintained that the contested decision was based on errors in fact. By their seventh plea the appellants maintained that the contested decision was based on manifest error in assessment. The General Court (at 139 and 166) dismissed both of these pleas. This dismissal was based on breaches of procedure adversely affecting the appellants. First, the General Court dismissal of the first part of fifth plea did not deal with its substance due to a misinterpretation by the GC of that plea. It also did not reflect the content of that plea as set forth in the Reply. Second, the General Court dismissal of the seventh plea did not reflect the content of that plea as set forth in the Reply.

Seventh ground of appeal: The appellants maintain that the General Court’s dismissal of the second part of their fifth plea, concerning violations of procedural rules by the defendant, infringes EU law.

Eighth ground of appeal: The appellants maintain that the General Court’s dismissal of their sixth plea, concerning wrongful adjudication by defendant of issues outside the purview of state aid law and the violation by defendant of Article 5(1) TEU, infringes EU law.

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¹ OJ 2017 C 69, p. 2.

² OJ 2008 C 82, p. 1.