Request for a preliminary ruling from the Tallinna Halduskohus (Estonia) lodged on 17 July 2023 – Warmeston OÜ v AS Elering

(Case C-446/23, Warmeston)

Language of the case: Estonian

Referring court

Tallinna Halduskohus

Parties to the main proceedings

Applicant: Warmeston OÜ

Defendant: AS Elering

Questions referred

How is the concept of (investment) project to be interpreted for the purposes of recitals 42 to 43 of European Commission Decision SA.47354 of 6 December 2017? How should it be determined which costs are associated with the project and could potentially have led to the project being considered, on 31 December 2016, to be in such state of development that it would very likely be completed (this project concerns the start of works)?

a.    In particular, can an installation that does not produce energy (such as a wood pellet plant) also form part of a project relating to an electricity production installation?

b.    Does the answer to the foregoing question depend on:

i.    whether the installation that does not produce energy is economically linked to the electricity production installation;

ii.    whether the installation that does not produce energy must be technically (energetically) linked to the electricity production installation; in other words, whether the operation, supplying or such like of the electricity production installation must be dependent on the other installation;

iii.    whether the construction of the installation that does not produce energy was in itself economically viable and technologically sound (in that, for example, it has been in operation for more than ten years and the project developer has not taken any steps to construct the electricity production installation in that time)?

c.    In particular, can an installation that does not produce energy form part of a project relating to an electricity production installation on the sole ground that it is economically more profitable to operate it in conjunction with the electricity production installation?

d.    In particular, must it be examined whether the installation that does not produce energy forms part of a project relating to an electricity production installation (in other words, whether the project developer would have constructed the installation that does not produce energy if it had not planned to build an electricity production installation) – or vice versa?

Should the assessment as to whether the works may be regarded as having started for the purposes of recital 42 of European Commission Decision SA.47354 of 6 December 2017 be based solely on the formal acceptance of unconditional and binding commitments (by way of a signature to that effect, for example), or is it also necessary to conduct a substantive examination each time to determine whether the project was in such state of development that it would very likely be completed, and whether abandoning the project would also have had substantive adverse consequences for the undertaking?

a.    In particular, must the state of development of the project be assessed in respect of all variants of the start of works, including the start of construction works?

b.    In particular, how must the substance of the commitments entered into be assessed? Can the ratio of the investments made/commitments entered into/construction works undertaken/costs incurred to the total value of the project be taken into account? Is it also relevant whether the commitments entered into relate to the electricity production installation or the infrastructure of the project?

c.    In particular, can the works be considered to have started in the case where, prior to 31 December 2016, the undertaking entered into commitments/made investments/started construction works/procured equipment, but the costs are so small in relation to the size of the overall project that the project cannot be regarded as having been in such state of development that it would very likely be completed? What ratio of costs to the overall value of the project can reasonably be regarded as being sufficient to support the assumption that the project is in such stage of development that that it will very likely be completed?

d.    In particular, must the Member State, when assessing whether the works may be regarded as having started, establish the presence of an incentive effect, or must that effect be taken as read, in accordance with European Commission Decision SA.47354 of 6 December 2017?

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