JUDGMENT OF THE GENERAL COURT (Third Chamber)
6 October 2021 (*)
(State aid – Polish electricity market – Capacity mechanism – Decision not to raise any objections – Aid scheme – Article 108(2) and (3) TFEU – Concept of doubts – Article 4(3) and (4) of Regulation (EU) 2015/1589 – Serious difficulties – Article 107(3)(c) TFEU – Guidelines on State aid for environmental protection and energy 2014-2020 – Failure to initiate the formal investigation procedure – Procedural rights of the interested parties – Obligation to state reasons)
In Case T‑167/19,
Tempus Energy Germany GmbH, established in Berlin (Germany),
T Energy Sweden AB, established in Gothenburg (Sweden),
represented by D. Fouquet and J. Derenne, lawyers,
applicants,
v
European Commission, represented by K. Herrmann and P. Němečková, acting as Agents,
defendant,
supported by
Republic of Poland, represented by B. Majczyna, acting as Agent,
by
PGE Polska Grupa Energetyczna S.A., established in Warsaw (Poland), represented by A. Ryan and A. Klosok, Solicitors, and by T. Janssens and K. Bojarojć-Bartnicka, lawyers,
by
Enel X Polska z o.o., established in Warsaw, represented by V. Cannizzaro, S. Ventura and L. Caroli, lawyers,
and by
Enspirion sp. z o.o., established in Gdańsk (Poland), represented by A. Czech, lawyer,
interveners,
APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2018) 601 final of 7 February 2018 not to raise objections to the aid scheme for the capacity mechanism in Poland, on the ground that that scheme is compatible with the internal market pursuant to Article 107(3)(c) TFEU (State aid SA.46100 (2017/N)),
THE GENERAL COURT (Third Chamber),
composed of A.M. Collins, President, V. Kreuschitz (Rapporteur) and G. Steinfatt, Judges,
Registrar: E. Coulon,
gives the following
Judgment (1)
I. Background to the dispute
A. The applicants
1 The applicants, the companies Tempus Energy Germany GmbH and T Energy Sweden AB (together, ‘Tempus’), sell electricity consumption management technology, also known as ‘demand-side response’ (‘DSR’), to individuals and professionals, inter alia in the electricity markets of the Federal Republic of Germany and the Kingdom of Sweden.
2 The service provided by Tempus to its clients is intended to create cost efficiencies in the electricity supply chain by combining DSR technology with the services provided by an electricity provider. Tempus sells electricity and helps its customers to move their non-critical electricity usage to periods when wholesale prices are low, either because demand is low or because power from renewable sources is plentiful and therefore cheaper.
B. The administrative procedure and the contested decision
3 By its action, Tempus seeks the annulment of Decision C(2018) 601 final of the European Commission of 7 February 2018 not to raise objections to the aid scheme for the capacity mechanism in Poland (‘the aid scheme’), which provides for the annual payment to capacity providers of 4 billion Polish zlotys (PLN), spread over a period of 10 years, on the ground that that scheme is compatible with the internal market, pursuant to Article 107(3)(c) TFEU (State aid SA.46100 (2017/N)) (‘the contested decision’).
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D. The aid scheme
10 The aid scheme establishes a capacity market mechanism or market which is intended to fill expected gaps between demand and capacity and, in so doing, ensure security of supply in a sustainable manner on the Polish electricity market, having regard to the estimate by the Polish authorities that that market will reach critical levels of resource adequacy or generation capacities in 2020. More specifically, according to those authorities, due to the extensive programme of phasing-out and mothballing of old power units by 2020, capacity shortages which cannot be met by market forces alone are expected, which is described as the ‘missing money problem’ (recitals 6 to 8 of the contested decision). In order to demonstrate that market failure, the Polish authorities relied, inter alia, on PSE’s data and medium-term forecasts on capacity adequacy (‘PSE’s adequacy assessment’), anticipating, in essence, for 2020, 2025 and 2030, a loss of load higher than the reliability standard expressed in terms of a Loss of Load Expectation (‘LoLE’) of 3 hours per annum (‘the reliability standard at issue’), which translates to a system security level of 99.97% (recital 31 of the contested decision). The data underlying that assessment were transmitted to the European Network of Transmission System Operators for Electricity (‘ENTSO-E’) for the purposes of the preparation of its 2017 report, entitled ‘Mid-term Adequacy Forecast (MAF) 2017’ (‘the 2017 MAF’), and PSE’s forecasts were reviewed by an external consulting firm (recitals 9 to 13 of the contested decision). As is apparent from recitals 15 and 16 of the contested decision, the Polish authorities committed to improving price signals during times of scarcity by a series of measures, including the assurance that, by 1 January 2021, DSR operators would be eligible to participate in the wholesale electricity and balancing markets and would be treated in a similar way as other market participants (recital 16(f) of the contested decision).
11 PSE is responsible for managing the capacity market, and one of its main tasks is to organise centrally managed auctions to procure the level of capacity required. Those auctions are in principle open to existing and new generators, DSR and storage operators, located in Poland or in the control area of neighbouring EU TSOs (recital 4 of the contested decision). Successful providers are to receive a steady payment for the duration of the capacity agreement granted (‘capacity payments’) in return for a commitment to deliver capacity at times of system stress when called on by PSE (the ‘capacity obligation’). If they fail to deliver the volume of energy corresponding to their capacity obligation, successful providers will incur financial penalties. Capacity payments are financed through a levy on electricity supplies (the ‘capacity charge’), collected from final consumers, on the basis of annual electricity consumption or of electricity consumed in the ‘selected hours of the day’.
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13 The Polish capacity mechanism was introduced by the Ustawa o rynku mocy (Polish Capacity Market Act of 8 December 2017; ‘the Act’) (Dz. U. of 2018, item 9), which entered into force on 18 January 2018. Pursuant to Article 34 of the Act, the Polish Minister of Energy adopted executive regulations which detail the provisions governing the functioning of the capacity market. On 30 March 2018, the President of the Urzęd Regulacji Energetyki (Energy Regulatory Office, Poland) approved those executive regulations. On 24 August 2018, the Polish Minister of Energy adopted the executive ordinance on the parameters of main auctions for the delivery period between 2021 and 2023.
14 The purpose of the Act is to provide medium- and long-term security of electricity supply to consumers, in a cost-effective, non-discriminatory and sustainable manner (Article 1(2)). The aim of the Polish capacity market is to create and negotiate capacity obligations, that is to say, the obligation of an operator to ensure the provision of capacity during delivery periods and its actual provision during emergency periods. That capacity can be made available either by generating and providing electricity or, in the case of DSR, by reducing demand at times of system stress. The auctions conferring capacity obligations are preceded by a registration and certification procedure (Articles 11 to 28 of the Act; recitals 20 to 26 of the contested decision), with characteristics concerning the certification of DSR operators (recitals 27 and 28 of the contested decision). Capacity providers participate in the auctions and in the Polish capacity market in the form of Capacity Market Units (‘CMUs’) which may, inter alia, be generating or DSR CMUs and consist of one or more physical units aggregated into a single group for the purposes of bidding (Article 16 of the Act; recital 17 of the contested decision). In order to be eligible as CMUs, physical generating or DSR units, including foreign ones, must achieve a minimum (net) capacity threshold of 2 megawatts (MW) (Article 16(1) (1), (2), (5) and (6) of the Act). For groups of physical generating or DSR units, including foreign ones, maximum capacity is to be 50 MW and each physical unit may not exceed the maximum (net) capacity of 10 MW (Article 16(1) (3), (4), (7) and (8) of the Act).
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III. Law
A. Admissibility
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35 As a preliminary point, it should be recalled that, according to the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of Article 53 thereof, an application to intervene is limited to supporting the form of order sought by one of the principal parties to the dispute. In addition, under Article 142(3) of the Rules of Procedure, the intervener must accept the case as he finds it at the time of his intervention. Consequently, although those provisions do not preclude the intervener from advancing arguments which are new or differ from those of the party which he supports, those arguments must not alter the framework of the dispute (see, to that effect, judgment of 20 March 2013, Andersen v Commission, T‑92/11, not published, EU:T:2013:143, paragraph 31 and the case-law cited; see, also, to that effect, judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 36 and the case-law cited).
36 It is true that the question of whether an intervener is entitled to plead the inadmissibility of the action where the main party has not done so and whether or not such a plea falls outside the scope of the dispute as determined by the form of order sought by the main party, has not yet been decided by the Court of Justice (judgments of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 121, and of 4 June 2020, Hungary v Commission, C‑456/18 P, EU:C:2020:421, paragraphs 22 to 24). However, given that admissibility is one of the absolute bars to proceedings, however, the General Court is, in any event, required to examine it of its own motion (see, to that effect, judgments of 9 June 2016, Magic Mountain Kletterhallen and Others v Commission, T‑162/13, not published, EU:T:2016:341, paragraph 38 and the case-law cited, and of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 36 and the case-law cited).
37 As regards standing to bring proceedings, within the meaning of the fourth paragraph of Article 263 TFEU, it must be stated that, contrary to what is argued by the Republic of Poland, PGE and Enspirion, Tempus is a ‘party concerned’ within the meaning of Article 108(2) TFEU or an ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589. Thus, its action, including all the pleas and complaints put forward in support of it to demonstrate that the Commission should have harboured doubts or experienced serious difficulties obliging it to initiate the formal investigation procedure provided for in Article 108(2) TFEU, is admissible in that it seeks to safeguard the procedural rights which Tempus would have enjoyed under that provision (see, to that effect, judgments of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 59 and 63 to 65 and the case-law cited; of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 81; and of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraphs 45, 46 and 49).
38 Article 1(h) of Regulation 2015/1589, after all, defines the concept of ‘interested party’, synonymous with that of ‘party concerned’ within the meaning of Article 108(2) TFEU, as relating, inter alia, to ‘any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations’. The use of the expression ‘in particular’ establishes that that provision contains merely a non-exhaustive list of persons that could be categorised as ‘interested parties’, with the result that that term covers an indeterminate group of persons (see, to that effect, judgments of 14 November 1984, Intermills v Commission, 323/82, EU:C:1984:345, paragraph 16; of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 63; and of 13 June 2019, Copebi, C‑505/18, EU:C:2019:500, paragraph 34).
39 Having regard to that definition, the EU Courts have interpreted ‘interested party’ broadly. Thus, it is apparent from the case-law that Article 1(h) of Regulation 2015/1589 does not rule out the possibility that an undertaking which is not a direct competitor of the beneficiary of the aid can be categorised as an interested party, provided that it demonstrates that its interests could be adversely affected by the grant of the aid, and that, for that purpose, it is sufficient that that undertaking establishes, to the requisite legal standard, that the aid is likely to have a specific effect 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 63 to 65 and the case-law cited). Similarly, a trade union can be categorised as ‘concerned’ within the meaning of Article 108(2) TFEU if it shows that its interests or those of its members might be affected by the granting of aid, provided that that trade union shows, to the requisite legal standard, that the aid is likely to have a specific effect on its situation or that of the members it represents (see, to that effect, judgment of 9 July 2009, 3F v Commission, C‑319/07 P, EU:C:2009:435, paragraph 33).
40 Accordingly, the argument of PGE and the Republic of Poland according to which Tempus does not warrant the status of interested party on the ground that it is not a ‘direct competitor’ present on the Polish capacity market or has not made sufficiently concrete plans for entering that market cannot succeed. Tempus has demonstrated, to the requisite legal standard, that its interests are liable to be affected by the aid scheme and that the grant both of the agreements and the capacity payments is likely to have a material impact on its situation. It has thus plausibly explained that it is at least a potential competitor on the Polish capacity market, in that it has the firm intention and an inherent ability to enter it in the near future and that the aid scheme raises barriers making that entry more difficult (see, as regards the concept of ‘potential competition’, judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraphs 36 to 58). In addition, Tempus’s status as an interested party is borne out by its status as an operator active on the adjacent German and Swedish electricity markets, which enables it, through interconnectors – or, in the case of the Swedish market, by means of a market coupling mechanism (see paragraph 9 above) – to participate in the Polish capacity market. That assessment is not invalidated by the fact that Tempus intervened neither in the national consultation procedures nor in the pre-notification and preliminary examination procedures before the Commission; in the context of the latter it does not have, in any event, as the Commission has rightly noted, its own procedural rights that would have enabled it to submit observations.
41 In any event, the mere fact that Tempus Energy Germany’s memorandum of association dates from 26 July 2018 – more than five months after the adoption of the contested decision, meaning that it could not necessarily have participated in a formal investigation procedure following a decision to initiate the procedure adopted on the same date – does not affect the admissibility of its action. Given that T Energy Sweden, with which it jointly brought the present action, holds the status of interested party and has standing to bring proceedings within the meaning of the case-law cited in paragraph 39 above, there is no need to examine Tempus Energy Germany’s standing to bring proceedings separately (see, to that effect, judgments of 9 June 2016, Magic Mountain Kletterhallen and Others v Commission, T‑162/13, not published, EU:T:2016:341, paragraphs 40 and 41 and the case-law cited, and of 20 September 2019, Le Port de Bruxelles and Région de Bruxelles-Capitale v Commission, T‑674/17, not published, EU:T:2019:651, paragraph 36).
42 Consequently, the action must be declared admissible.
B. Substance
1. Subject matter of the dispute and review of substantive legality
43 In support of its action, Tempus puts forward two pleas for annulment.
44 The first plea alleges a failure by the Commission to fulfil its obligation to initiate the formal investigation procedure and, therefore, breach of Tempus’s procedural rights, as an interested party, under Article 108(2) TFEU and Article 6(1) of Regulation 2015/1589. This plea is subdivided into two main parts, the second of which in particular contains several sections, subsections and complaints aimed at demonstrating the existence of serious difficulties, within the meaning of the case-law, or of doubts, within the meaning of Article 4(3) and (4) of Regulation 2015/1589, which the Commission ought to have had during its preliminary examination.
45 The second plea alleges breach by the Commission of its obligation to state reasons under the second paragraph of Article 296 TFEU.
46 As regards the first plea and the scope of the review of legality which the General Court is called upon to carry out in that regard, it should be recalled that Article 108(3) TFEU and Article 4 of Regulation 2015/1589 establish a preliminary examination stage for notified aid measures. On completion of that stage, the Commission is to make a finding either that the measure does not constitute aid or that it falls within the scope of Article 107(1) TFEU. In the latter case, it may be that the measure does not raise doubts as to its compatibility with the internal market; on the other hand, it is also possible that the measure may raise such doubts (see, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 43).
47 When, after the preliminary examination stage, the Commission adopts a decision, as in the present case, whereby it finds that a State measure does not constitute aid that is incompatible with the internal market, it implicitly refuses to initiate the formal investigation procedure. That principle applies both where the decision is taken on the ground that the Commission considers that the aid is compatible with the internal market, under Article 4(3) of Regulation 2015/1589, namely ‘a decision not to raise objections’, and where it is of the opinion that the measure does not come within the scope of Article 107(1) TFEU and thus does not constitute State aid pursuant to Article 4(2) of the same regulation (see, to that effect, judgment of 19 June 2019, Ja zum Nürburgring v Commission, T‑373/15, EU:T:2019:432, paragraph 111 and the case-law cited; see, also, to that effect, judgment of 16 March 2021, Commission v Poland, C‑562/19 P, EU:C:2021:201, paragraph 50 and the case-law cited).
48 On the other hand, it is apparent from settled case-law that, if the Commission is unable to conclude, following an initial examination in the context of the procedure under Article 108(3) TFEU, that a State aid measure either is not ‘aid’ within the meaning of Article 107(1) TFEU or, if classified as aid, is compatible with the FEU Treaty, or where that procedure does not make it possible for it to overcome the serious difficulties involved in determining whether the measure in question is compatible with the common market, the Commission is under a duty to initiate the formal investigation procedure under Article 108(2) TFEU, without having any discretion in that regard. That obligation corresponds to the one enshrined in Article 4(4) of Regulation 2015/1589, pursuant to which the Commission is required to initiate the procedure under Article 108(2) TFEU where the measure at issue raises doubts as to its compatibility with the internal market (see, to that effect, judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 57 and the case-law cited).
49 The concept of serious difficulties coincides with that of doubts (see judgment of 9 September 2020, Kerkosand v Commission, T‑745/17, EU:T:2020:400, paragraph 106 and the case-law cited) and is objective in nature. The existence of such difficulties must be sought not only in the circumstances in which the Commission’s decision was adopted at the end of the preliminary examination but also in the assessments upon which it has relied. It follows that the legality of a decision not to raise objections, based on Article 4(3) of Regulation 2015/1589, depends on the question whether the assessment of the information and elements which the Commission had or should have had at its disposal, during the preliminary examination stage of the notified measure, should have objectively raised doubts as to the compatibility of that measure with the internal market, given that such doubts must give rise to the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of the same regulation may participate (see, to that effect, judgments of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraphs 79 and 80 and the case-law cited; see, also, to that effect, judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 58 and the case-law cited).
50 Indeed, the case-law has further made clear in that regard that the legality of such a decision is to be assessed in the light of the information available to the Commission when the decision was adopted, it being understood that the information ‘available’ to the Commission includes that which appeared to be relevant for the assessment to be carried out and which could have been obtained, upon request by the Commission, during the preliminary examination stage (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraphs 70 and 71).
51 It is for the applicant to prove the existence of serious difficulties or doubts. It may do so by reference to a body of consistent evidence, in particular, by claiming and establishing that the examination carried out by the Commission during the preliminary examination procedure was insufficient or incomplete (see, to that effect, judgments of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 82 and the case-law cited, and of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraphs 59 and 60 and the case-law cited).
52 It is in the light of those principles of case-law that the merits of the first plea must be examined.
2. First plea: failure by the Commission to fulfil its obligation to initiate the formal investigation procedure in accordance with Article 108(2) TFEU
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(a) First part of the first plea: existence of doubts as to the conduct and length of the procedure
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(2) Findings of the General Court
63 As a preliminary point, it should be noted that the line of argument developed by Tempus in the first part of its first plea is largely inspired by the considerations set out in paragraphs 78 to 115 of the judgment of 15 November 2018, Tempus Energy and Tempus Energy Technology v Commission (T‑793/14, EU:T:2018:790). It is true that, in paragraphs 90 and 91 of that judgment, the General Court found that the purpose of the pre-notification was not to assess the compatibility with the internal market of a significant, complex and novel measure and that the Commission must not confuse that – possibly prior – phase of the preparation of the notification with the phase for the examination of the notification, which initially occurs as a preliminary examination and, where necessary, subsequently takes the form of a formal investigation, if it proved necessary in order to allow it to gather all the information it had needed to assess the compatibility of the aid and collect, to that end, the observations of the interested parties.
64 It is not apparent from the foregoing, however, that the Commission is generally expected to refrain from any assessment, even a provisional one, of the compatibility of proposed aid in the pre-notification phase. That finding corresponds to the content of paragraphs 11, 12 and 16 of the Code of Best Practice, by the setting and publication of which the Commission imposed a limit on the exercise of its discretion as regards the organisation of its procedures (see, to that effect, judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 100 and the case-law cited), according to which, in essence, the pre-notification phase is specifically intended to enable the services of the Commission and the Member State concerned, including in particularly novel or complex cases, to address key competition problems, carry out economic analysis and, where appropriate, obtain the external expertise required to demonstrate ‘the compatibility of a planned project with the internal market’. In that regard, the Republic of Poland and Enel X are right to submit that, during that phase, the Commission must necessarily be able to assess that information in order to determine whether, following formal notification, it is sufficient to enable it to carry out a full examination of the compatibility of the proposed aid with the internal market. This is all the more true since, otherwise, contrary to paragraph 16 of that code, at the end of the pre-notification phase, the Commission would not even be in a position to provide the national authorities with an informal and non-binding provisional assessment of the said proposed aid for that purpose.
65 Tempus acknowledges that it does not criticise the Commission for having carried out an excessively long examination of the notified aid scheme in the preliminary examination procedure initiated following its complete notification by the Polish authorities, which lasted only two months, as provided for in Article 4(5) of Regulation 2015/1589, but considers that the allegedly excessive length of the pre-notification phase is indicative of the existence of doubts or serious difficulties. It must be pointed out, however, that, even if the Commission cannot misuse the pre-notification phase in order to avoid the constraints, in particular temporal, of the preliminary examination procedure – or even circumvent it (see the case-law cited in paragraph 63 above, concerning a case in which the draft decision was already ready at the time of the notification) – in complex cases, exceptionally, pre-notification contacts are capable of lasting several months (see paragraph 14 of the Code of Best Practice).
66 The General Court considers that, in the case at hand, the duration of a pre-notification phase of approximately one year cannot be considered indicative of the existence of such misuse or of a circumvention, nor can that duration constitute an indication of doubts, even if it is a complex case. Paradoxically, Tempus itself considers that the aid scheme was of such complexity that it necessitated a thorough examination in the context of a formal investigation procedure. However, in accordance with paragraph 14 of the Code of Best Practice, in such a complex case, the Commission could legitimately exceed the indicative period of two months and continue the pre-notification phase for ‘several months’ in order to ensure that the Member State submits a complete notification in order to enable it to carry out its preliminary examination in full knowledge of the facts. In the present case, as the Commission notes, when it was pre-notified, the draft law was not yet final and still had to pass several stages in the legislative process in Poland, including a public consultation, to be finally adopted by the Polish Parliament on 8 December 2017, that is to say, only two days after its formal notification. Thus, in order to comply with the State aid rules and following the recommendations set out in paragraphs 10 to 18 of the Code of Best Practice, the Polish authorities had initiated pre-notification contacts with the Commission at an early stage of the internal decision-making process in order to be able to take account of the provisional positions of that institution throughout that process and to ensure that the project ultimately notified was likely to meet the criteria for compatibility under Article 107(3)(c) TFEU and the Guidelines on State aid for environmental protection and energy 2014-2020 (OJ 2014 C 200, p. 1; ‘the Guidelines’). Therefore, without other elements indicating misuse, which are absent in this case (see paragraphs 67 and 68 below), such a collaborative approach on the part of the Polish authorities and the Commission, based on the principle of sincere cooperation, under Article 4(3) TEU, cannot in itself be regarded as giving rise to doubts or serious difficulties.
67 In addition, the Commission and the interveners rightly submit that, unlike the procedure relating to the United Kingdom capacity market that was the subject of the judgment of 15 November 2018, Tempus Energy and Tempus Energy Technology v Commission (T‑793/14, EU:T:2018:790, paragraphs 101 to 105), in the present case there is no evidence that, during the procedures both at national level and before the Commission, in particular during the public consultation of the draft law initiated by the Polish authorities following its pre-notification, the proposed aid scheme was challenged by interested parties and, in particular, by DSR operators. Tempus itself does not claim to have participated in that consultation or to have submitted observations or complaints to the Commission, unlike the applicants’ approach in that other case concerning the United Kingdom capacity market, as members of the UK Demand Response Association (UKDRA).
68 In that regard, Tempus is not justified in invoking the absence of procedural guarantees on the part of the parties concerned during the pre-notification and preliminary examination stages, since a prudent and diligent operator wishing to enter a national electricity market which is subject to significant reform is supposed to take, like the applicants in the case concerning the United Kingdom capacity market, all the steps necessary to defend its commercial interests before the competent authorities. Thus, in its preliminary examination, the Commission was entitled to rely not only on the results of its sector inquiry into the capacity markets of 11 Member States which already included Poland, but also, in the absence of detailed objections, to rely on the results of the public consultation which had given rise to a multitude of comments from interested parties, including Polish DSR operators such as Enel X and Enspirion. In addition to this, Tempus had experience in assessing the United Kingdom capacity market, the policy design of which bears, according to Tempus’s own statements, certain similarities to the Polish capacity market.
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71 Finally, contrary to what Tempus maintains, the scale or volume of the aid to be granted under the aid scheme cannot in itself be deemed to be indicative of doubts or serious difficulties. In that regard, the Commission rightly contends that, as is also apparent from paragraphs 10 to 18 of the Code of Best Practice, even proposed aid of a certain size, complexity or novelty must, in principle, be able to receive the same treatment as other, less significant aid proposals, the provisions of the FEU Treaty, Regulation 2015/1589 and that code making no distinction in that regard.
72 Consequently, the first part of the first plea, alleging the existence of doubts concerning the conduct and the length of the procedure, must be rejected as unfounded.
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(b) Second part of the first plea: existence of doubts concerning the content of the contested decision
(1) Preliminary observations
(i) The alleged doubts or serious difficulties in the light of the provisions of the Guidelines
75 In the second part of the first plea, Tempus argues, in essence, that, as demonstrated by a comparison of the grounds of the contested decision with the information available on the Polish capacity market, the Commission should have had doubts or serious difficulties as to the compatibility of the aid scheme with the internal market in the light of Article 107(3) TFEU, read in conjunction with the relevant provisions, in particular Section 3.9 of the Guidelines. It did not, however, research and examine, thoroughly and impartially, all the relevant information so as to eliminate all those doubts. In particular, the Commission’s assessment is insufficient and incomplete with respect to (i) the objective of common interest and the need for State intervention (first section); (ii) the appropriateness of the aid scheme (second section); (iii) the incentive effect (third section); (iv) the proportionality of the aid (fourth section) and (v) the avoidance of undue negative effects on competition and trade between Member States (fifth section).
(ii) The legal nature of the Guidelines and the scope of the review of legality by the EU Courts in that regard
76 So far as concerns the legal nature of the Guidelines and the scope of the review of legality that the EU Courts are called upon to exercise in the light of their provisions, it should be recalled that, in adopting such rules of conduct and announcing them by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its aforementioned discretion and, in principle, cannot depart from those rules without being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 100 and the case-law cited).
77 It is in the light of those principles of case-law that the various sections of the second part of the first plea must be examined.
(2) First section: alleged incompleteness of the assessment of the objective of common interest and the need for State intervention
(i) First subsection: the objective of common interest
78 Tempus submits that a number of aspects should have given rise to doubts on the part of the Commission in the light of paragraph (220) of the Guidelines. It states that it does not contest the objective of common interest pursued by the Polish capacity mechanism, namely that of securing sufficient supplies of electricity to final consumers in Poland. However, the general objective of the Guidelines is ‘to ensure a competitive, sustainable and secure energy system in a well-functioning Union energy market’ (paragraph (30)) and they recognise that ‘aid for generation adequacy may contradict the objective of phasing out environmentally harmful subsidies including fossil fuels’ (paragraph (220)). It follows that the Member States are required not to view generation adequacy as an isolated objective of common interest, but as an objective in the greater context of a general aim to ‘support the shift towards a resource-efficient, competitive low-carbon economy’ (paragraph (30)). That reading also applies in the light of Article 194(1) TFEU, which lists the functioning of the energy market, energy efficiency, the development of new and renewable forms of energy and the promotion of interconnection as aims pursued by the European Union, alongside security of supply.
– The first complaint
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88 Tempus bases its challenge on the main premiss according to which the objective of common interest of generation adequacy, as set out in paragraph (220) of the Guidelines, is not an isolated objective, but an objective in the wider context of a general aim, namely that of supporting the ‘shift towards a resource-efficient, competitive low-carbon economy’, provided for in paragraph (30) of the Guidelines, which corresponds to the European Union’s objectives referred to in Article 194(1) TFEU, including the functioning of the energy market, energy efficiency, the development of new and renewable forms of energy and the promotion of interconnection, which should go alongside security of energy supply.
89 In that regard, Tempus does argue, rightly, that the objectives of common interest which environmental aid is meant to pursue are apparent from a combined reading of paragraphs (30) and (220) of the Guidelines.
90 After all, in the ‘general compatibility provisions’, under the subheading ‘General conditions’ of the heading ‘Contribution to an objective of common interest’, paragraph (30) of the Guidelines recognises a ‘general objective’ of environmental aid, including in the energy sector, which is to ‘increase the level of environmental protection compared to the level that would be achieved in the absence of the aid’. In that regard, reference is made to the Europe 2020 strategy, which sets ‘targets and objectives for sustainable growth to support the shift towards a resource-efficient, competitive low-carbon economy’. It specifies the primary objective of aid in the energy sector, which is to ensure ‘a competitive, sustainable and secure energy system in a well-functioning Union energy market’. Under paragraph (31) of the Guidelines, Member States intending to grant environmental or energy aid have to ‘define precisely the objective pursued and explain what is the expected contribution of the measure towards th[at] objective’. That obligation to specify objectives is recalled in paragraph (221) of the Guidelines as regards aid for generation adequacy.
91 Having regard to the more general definitions set out above, paragraphs (219) and (220) of the Guidelines specify the content of the objective of common interest that aid for generation adequacy, such as that in the present case, is intended to pursue. Paragraph| (219) recognises that such aid ‘can pursue different objectives’ and may aim at addressing ‘short-term concerns brought about by the lack of flexible generation capacity to meet sudden swings in variable wind and solar production’ or the definition of ‘a target for generation adequacy, which Member States may wish to ensure regardless of short-term considerations’. That in itself indicates that the Member States have a certain discretion in defining those sub-objectives that are deemed to equate to an objective of common interest.
92 That discretion of the Member States in the defining those sub-objectives and in balancing them is confirmed in paragraph (220) of the Guidelines, which recognises that aid for generation adequacy ‘may contradict the objective of phasing out environmentally harmful subsidies including for fossil fuels’ and therefore derogate from the general objective of common interest referred to in paragraph (30) of the Guidelines to ‘increase the level of environmental protection’. Its exercise is however limited by the recommendation, also mentioned in paragraph (220) of the Guidelines, according to which ‘Member States should therefore primarily consider alternative ways of achieving generation adequacy which do not have a negative impact on the objective of phasing out environmentally or economically harmful subsidies, such as facilitating demand side management and increasing interconnection capacity’.
93 This means that Member States are supposed to balance the potentially conflicting objectives of security of energy supply against environmental protection, all the while observing the principle of proportionality in the strict sense, with the aim of reducing the environmental impact of aid to the strict, necessary and acceptable minimum. Moreover, that requirement to balance these objectives is perfectly compatible with, on the one hand, the objectives – also potentially divergent – set out in Article 194(1) TFEU, which aim both to ensure the functioning of the energy market and security of energy supply in the European Union and to promote energy efficiency, energy saving, the development of new and renewable energy sources and the interconnection of energy networks, and, on the other hand, the requirements of the principle of proportionality, as set out in Article 5(4) TEU. Thus, that requirement is recalled, under the heading ‘Appropriateness of the aid’, in paragraphs (42) and (43) of the Guidelines, according to which, inter alia, ‘a measure addressing a generation adequacy problem needs to be balanced with the environmental objective of phasing out environmentally or economically harmful subsidies, including for fossil fuels’.
94 It follows that, in principle, Tempus is correct to note that, under paragraph (220) of the Guidelines, when a Member State introduces a capacity mechanism, it is supposed to take account of the objective of common interest of environmental protection by refraining from frustrating that objective by unilaterally favouring generation capacities using fossil fuels, and by promoting it, inter alia, by ‘facilitating demand side management’.
95 It must however be stated that, regard being had to the discretion of the Member State recalled in paragraphs 91 and 92 above, including concerning its choice between various energy sources and the general structure of its energy supply in order to guarantee its security (see, to that effect, judgment of 22 September 2020, Austria v Commission, C‑594/18 P, EU:C:2020:742, paragraph 48 and the case-law cited), a clear and precise obligation as to the ways in which DSR potential should be assessed or promoted, however, follows neither for that Member State (see, to that effect and by analogy, judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 44) nor for the Commission. Similarly, as the Commission and the interveners note, that provision cannot be interpreted as prohibiting aid measures for conventional power plants, including fossil fuel plants, where these prove necessary to guarantee generation adequacy and therefore the security of energy supply, or as requiring them to give absolute priority to alternative techniques, such as DSR or interconnection capacities.
96 Tempus does not, however, claim that, in the present case, by enacting the Act, the Polish legislature failed to exercise that discretion or balance the potentially divergent objectives recalled in paragraphs 93 and 94 above, but merely claims that the assessment set out in recitals 138 and 163 of the contested decision is based on the ‘worst test’ in that it failed to assess, as is allegedly required by paragraph (220) of the Guidelines, the actual potential of DSR in the ‘energy-only’ Polish market, that is to say, in the absence of the capacity market.
97 However, such a requirement of a counterfactual examination of DSR potential cannot be inferred either from that paragraph or from any other relevant provision of the Guidelines. Even though paragraph (30) thereof states that environmental aid is supposed to ‘increase the level of environmental protection compared to the level that would be achieved in the absence of the aid’, it does not follow that there is a requirement to quantify precisely the level of protection, inter alia, by DSR as a technique for economic and efficient use of energy and, therefore, environmental protection. Nor, contrary to what Tempus argues, is such a requirement apparent from the wording of the second sentence of paragraph (220) of the Guidelines, which provides that ‘Member States should … primarily consider alternative ways of achieving generation adequacy which do not have a negative impact on the objective of phasing out environmentally or economically harmful subsidies’. That sentence contains only a requirement addressed to the Member States to balance potentially divergent objectives, recalled in paragraphs 93 and 94 above, in the context of which it is recommended that such subsidies should no longer be promoted and that instead recourse should be had to support measures intended, inter alia, for facilitating DSR and increasing interconnection capacity. Indeed, it is only in the context of the examination of the proportionality of the aid as such that paragraphs (69) and (70) of the Guidelines provide for a counterfactual scenario, such as that invoked by Tempus.
98 Therefore, in the case at hand, it was sufficient for the Commission to assess the question of whether the aid scheme was likely to facilitate DSR on the basis of the information which, at the time of the adoption of the contested decision, it had in its possession relating to the factual and legal situation of DSR operators, their potential for development and their prospective development on the Polish electricity or capacity market. It is on that basis that the Commission was entitled to take into consideration DSR potential in order to assess its likely growth prospects and to make sure that it was not discriminated against compared to other conventional capacity providers (see the examination of the second complaint below), without it having to entertain any doubts in that regard.
99 Consequently, the first complaint must be rejected as unfounded.
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(ii) Second subsection: the need for intervention by the Polish State
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– The second complaint
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132 It should be pointed out that paragraphs (222) to (224) of the Guidelines, under the heading ‘Need for State intervention’, do not lay down any specific requirement for Member States to promote the production of energy from renewable sources, but require only demonstration of the need to introduce an aid scheme for generation adequacy in the light, in particular, of the impact of certain technologies, such as DSR and the actual or potential existence of interconnectors (paragraph (224)(b) and (c) of the Guidelines). Nor does that alleged requirement follow from the ‘objective of common interest’, as described in paragraphs (219) and (220) of the Guidelines, in the light of which Tempus again attempts to call into question recitals 134 to 143 of the contested decision (see, also, the first complaint). While those provisions do set out the objective of phasing out environmentally harmful subsidies, including for fossil fuels, they do not contain any precise objective, in terms of capacity volumes, of promoting RES in return, as is enshrined in Directive 2009/28. The same is true of the vague and unsubstantiated argument which Tempus draws from the promotion of the technology of co-firing biomass in Polish coal power plants. That does not, however, prejudge the question of whether those factors are liable to have an impact on other criteria of the Guidelines, such as the appropriateness of the aid, within the meaning of paragraph (225) of the Guidelines (see paragraph 235 et seq. below).
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(3) Second section: alleged incompleteness of the assessment of the appropriateness of the aid scheme
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(ii) Second subsection: discrimination of DSR
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– The first complaint
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161 It should be recalled that, in accordance with settled case-law, applicable in matters of State aid, the general principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 66). The comparability of different situations must be assessed with regard to all the elements which characterise them. These elements must in particular be determined and assessed in the light of the subject matter and purpose of the European Union act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (judgment of 12 December 2014, Banco Privado Português and Massa Insolvente do Banco Privado Português v Commission, T‑487/11, EU:T:2014:1077, paragraph 139 and the case-law cited).
162 Moreover, it is important to note that, regardless of whether the contested decision is a decision not to raise objections that is subject to a review of legality aimed at assessing the existence of doubts or serious difficulties (see paragraphs 48 to 51 above), the observance by the Commission of the principle of equal treatment is a question of law involving no discretion on its part and is therefore amenable to a full review by the EU Courts (see, to that effect, judgments of 11 September 2007, Lindorfer v Council, C‑227/04 P, EU:C:2007:490, paragraph 63 and the case-law cited, and of 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraphs 100 to 103 and the case-law cited). It is in the light of that premiss that it is appropriate to examine whether the Commission should have had doubts as to observance of, inter alia, the principle of equal treatment which it was required to observe also when applying Article 107(3)(c) TFEU (see, to that effect, judgment of 15 June 1993, Matra v Commission, C‑225/91, EU:C:1993:239, paragraph 41), and the rules of the Guidelines which are intended to implement that provision.
163 Thus, in the case at hand, observance of the principle of equal treatment must be assessed in the light of the objectives recognised by the Guidelines (see Section 3.9.1, entitled ‘Objective of common interest’), which are intended to implement, inter alia, Article 107(3)(c) TFEU, read in conjunction with Article 194(1) TFEU (see paragraphs 88 and 93 above).
164 Those objectives include, in particular, the objective of generation adequacy defined by the Member State irrespective of any short-term concerns (paragraph (219) of the Guidelines). In that regard, while it is true that Member States may be authorised to grant aid which may ‘contradict the objective of phasing out environmentally harmful subsidies including for fossil fuels’, they ‘should … primarily consider alternative ways of achieving generation adequacy which do not have a negative impact on th[at] objective …, such as facilitating demand side management and increasing interconnection capacity’ (paragraph (220) of the Guidelines). Furthermore, in the light of those objectives, coupled with the objective of the aid remunerating ‘solely the service of pure availability provided by the generator …’ and not for the sale of electricity (see Section 3.9.3, entitled ‘Appropriateness’), such aid measures ‘should be open and provide adequate incentives to both existing and future generators and to operators using substitutable technologies, such as demand-side response or storage solutions’ (paragraphs (225) and (226) of the Guidelines).
165 It must be held that DSR CMUs and generating CMUs, in particular new ones and ones to be modernised, are, in the light of the objectives pursued by the Polish capacity market, in different factual and legal situations as regards the application of the CAPEX criteria determining the length of the capacity agreements, which is not as such disputed by Tempus.
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– The second complaint
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180 In so far as Tempus relies on paragraph (43) of the Guidelines, it should be recalled that that provision takes account of the possible need to balance ‘a measure addressing a generation adequacy problem … with the environmental objective of phasing out environmentally or economically harmful subsidies, including for fossil fuels’. Thus, it does not follow that the environmental objective which is inherent in the Green Bonus is an absolute priority as such, in the sense that that bonus should be generally available to any operator using low CO2-emitting technologies, such as DSR. Likewise, paragraph (221) of the Guidelines merely sets out the requirement for the Member State concerned to define clearly the precise objective at which the aid measures for generation adequacy are aimed, which is the case here as regards both the objective of common interest (see paragraph 89 et seq. above) and the Green Bonus (see paragraph 171 above). Finally, the requirement to give preference to low-carbon producers through those measures, in case of equivalent technical and economic parameters (paragraph (233)(e) of the Guidelines), should not be understood as being absolute, either, but is also subject to the aforementioned balancing requirement.
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– The fifth complaint
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196 It is apparent from paragraph (226) of the Guidelines, inter alia, that ‘the [aid] measure should be open and provide adequate incentives to both existing and future generators and to operators using substitutable technologies, such as [DSR] or storage solutions’ and that the aid ‘should therefore be delivered through a mechanism which allows for potentially different lead times, corresponding to the time needed to realise new investments by new generators using different technologies’. Similarly, under the heading ‘Avoidance of undue negative effects on competition and trade’, paragraph (232)(a) of the Guidelines states that that measure ‘should be designed in a way so as to make it possible for any capacity which can effectively contribute to addressing the generation adequacy problem to participate in the measure, in particular, taking into account … the participation of generators using different technologies and of operators offering measures with equivalent technical performance, for example, demand side management, interconnectors and storage’.
197 As the Commission and the interveners submit, those provisions are an expression of the principle of technological neutrality, which requires that a capacity mechanism not unilaterally favour a particular energy supply or generation technology, including one based on fossil fuel or RES (see paragraph 90 et seq. above and paragraph 205 below). It is in that spirit of technological neutrality that, in order to address a capacity adequacy problem, those provisions require the creation of appropriate incentives to make greater use of technologies that are substitutable for equivalent technical qualities, such as DSR, interconnections and storage solutions.
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(iv) Fourth subsection: insufficient participation of foreign capacity
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219 The question of the fair and non-discriminatory access of foreign capacity, including DSR, to a national capacity market is regulated, specifically, in Section 3.9.6, under the heading ‘Avoidance of undue negative effects on competition and trade’, and, in particular, in paragraph (232)(b) of the Guidelines, according to which ‘the [aid] measure should be designed in a way so as to make it possible for any capacity which can effectively contribute to addressing the generation adequacy problem to participate in the measure, in particular, taking into account … the participation of operators from other Member States where such participation is physically possible in particular in the regional context, that is to say, where the capacity can be physically provided to the Member State implementing the measure and the obligations set out in the measure can be enforced’. It follows that a Member State which introduces a capacity market is not supposed to open that market to foreign capacity immediately and treat it on an equal footing with domestic capacity, but is obliged only to make its access possible in so far as this is necessary in order to address a generation adequacy problem and ‘where such participation is physically possible’, in particular ‘where … the obligations set out in the [aid scheme] can be enforced’. Nor does paragraph (233)(a) of the Guidelines lay down a requirement to treat domestic and foreign capacity perfectly equally, but merely requires, in the negative, that the aid scheme not reduce ‘incentives to invest in interconnection capacity’.
220 It is in the light of those requirements for the gradual opening of the domestic capacity market that it should be examined whether Tempus’s challenge to the introduction by the Polish State of the transitory and target solutions (see Article 6 of the Act), which seek to implement those requirements, should have raised doubts on the part of the Commission.
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226 By the second part of the fourth subsection, Tempus criticises the Commission for having provisionally accepted the transitory solution, although it is both inappropriate and unlawful. First, as ‘gatekeepers’ of CMUs participating in the auctions of the Polish electricity market, neighbouring TSOs are faced with a serious conflict of interest, in that they are incentivised to protect the resource adequacy of their domestic grid or market first and foremost and not to reach a timely agreement with PSE, which would cause them to lose that role as gatekeeper. Second, a DSR CMU may not be the preferred choice of a TSO, since DSR reduces constraints on that grid and, therefore, the business case for capacity transfer expansion. Third, the Commission allowed a breach of the EU rules governing the unbundling of TSOs, in so far as an unbundled TSO cannot, even in an interim phase, simultaneously act as a producer and as a DSR operator actively participating in auctions of the Polish capacity mechanism.
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228 As regards the TSOs’ alleged role as ‘gatekeeper’ of the CMUs, it is sufficient to note that Tempus’s first argument, based on the TSOs’ alleged conflict of interest, is neither plausible nor substantiated, in view of the detailed explanations to the contrary provided by the Commission and the interveners, including in response to the General Court’s written question. Thus, it seems illogical, or even contradictory, to consider that a foreign TSO, in its capacity as interconnector subject to the obligations laid down in Article 12 of Directive 2009/72 and as a bidder participating in the auctions of the Polish capacity mechanism, does not seek to facilitate the participation of foreign capacity in the Polish capacity market. On the contrary, the volume of capacity obtained by that TSO in those auctions is specifically intended to be reserved for that capacity whose non-discriminatory access to that volume must be ensured (Article 12(d) and (f) of that directive, read in conjunction with Article 2(18) thereof). In addition, the revenues from such participation are liable to strengthen the market position of that foreign capacity in the interest both of security of supply on interconnected markets and of the secure, reliable and efficient management of electricity flows on the system, taking into account exchanges with other interconnected systems, in accordance with the objective referred to in Article 12(d) of Directive 2009/72. Similarly, by increasing cross-border trade which is liable to influence generation adequacy in interconnected systems in a positive manner, the participation of foreign capacity via a foreign TSO is in fact beneficial to the market coupling referred to in paragraph (232)(d) of the Guidelines and to the liberalisation of the internal market for electricity, and not the other way round. In any event, Tempus has not been able to establish that such participation would prevent or reduce the contribution of foreign capacities to security of supply on their own systems or on their domestic markets.
229 The first argument therefore cannot be accepted.
230 It must be held that Tempus’s vague and succinct second argument, according to which a DSR CMU may not be the preferred choice of a TSO since DSR reduces grid constraints and, therefore, the business case for capacity transfer expansion, is not convincing and cannot succeed. First, the argument relating to the saving of capacity on the grid, which is therefore available for export in cross-border areas, contradicts Tempus’s first argument, as rejected in paragraphs 228 and 229 above, according to which TSOs are incentivised first and foremost to protect the resource adequacy of their domestic grid or market. Second, discrimination between generation capacity and DSR operators as regards access to the capacity volume won by a foreign TSO at the auctions of the Polish capacity mechanism is expressly prohibited by Article 12(f) of Directive 2009/72, read in conjunction with Article 2(18) thereof. Third, the Republic of Poland and PGE have contended, in a plausible manner, that DSR does not affect the need to expand grid infrastructure since it reduces demand for grid electricity only in periods of shortages, which at the same time results in relatively high prices in the electricity market, and that, in other periods, DSR operators run their customers normally, for which an adequate availability of grid infrastructure is thus required. Indeed, Tempus does not allege that DSR contributes to the reduction of the demand for grid infrastructure in the event of stable and continuous use of its methods by customers, irrespective of pricing signals from the electricity market. Such a reduction in infrastructure needs does not appear to be the aim of their current business model, which could explain, in part, their limited potential on the Polish capacity market (see paragraph 103 et seq. above). Last, as those interveners correctly point out, it is not possible to separate completely electricity generators and DSR operators from the activities of TSOs, particularly in the context of cross-border exchanges.
231 The second argument must therefore also be rejected as unfounded.
232 As regards Tempus’s third argument, alleging breach of the EU rules governing the unbundling of TSOs and of the alleged prohibition on simultaneously acting as producer and DSR operator participating in auctions of the Polish capacity mechanism, it is apparent from the detailed observations of the Commission, Enel X, PGE and the Republic of Poland in response to the written question of the General Court, which Tempus has disputed only very vaguely and succinctly, that that argument is based on a false premiss.
233 The unbundling obligation laid down in Article 9(1) of Directive 2009/72, by virtue of which Member States are required to unbundle transmission systems and the operation of generation and supply activities in their national energy markets, is without prejudice to the tasks of the TSOs, as interconnectors, under Article 12 of the same directive, which correspond to those entrusted to PSE and to foreign TSOs under the transitory solution (see paragraph 228 above). Moreover, the Commission and those interveners have explained, convincingly, that, in that capacity, those TSOs merely act as intermediary and facilitator enabling foreign capacity to have non-discriminatory access to the volume of capacity won by a foreign TSO in the auctions of the Polish capacity mechanism. Therefore, contrary to what Tempus claims, for a TSO, there is no confusion between its status as grid operator and interconnector, on the one hand, and the activities of generation or supply of electricity of generation capacity and DSR capacity, on the other.
234 Consequently, the third argument of the second part of the fourth subsection must also be rejected as unfounded, as must that subsection in its entirety.
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(4) Third section: alleged incompleteness of the assessment and alleged violation of the incentive effect of the aid
(i) First subsection: alleged retroactivity of the aid scheme
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245 It should be recalled, as a preliminary point, that, as regards the incentive effect of the aid, the provisions of Section 3.2.4 (in particular paragraphs (49) to (52)) of the Guidelines must be taken into consideration. In accordance with paragraph (49) of the Guidelines, the aid scheme can be found compatible with the internal market only if it has an incentive effect. This assumes that ‘the aid induces the beneficiary to change its behaviour to increase the level of environmental protection or to improve the functioning of a secure, affordable and sustainable energy market, a change in behaviour which it would not undertake without the aid’. In addition, it ‘must not subsidise the costs of an activity that an undertaking would anyhow incur and must not compensate for the normal business risk of an economic activity’. In accordance with paragraph (50) of the Guidelines, in essence, aid is considered not to have an incentive effect for the beneficiary – and, therefore, to be incompatible with the internal market – where that beneficiary submitted its aid application to the national authorities after the start of work on the project.
246 As regards paragraph (49) of the Guidelines, it is apparent from the passage ‘to increase the level of environmental protection or to improve the functioning of a secure, affordable and sustainable energy market’ that the incentive effect of aid for generation adequacy may be linked to one or other of those objectives, depending on the balancing exercise which the Member State is supposed to carry out in the light of the general criteria and objectives set out in paragraphs (30), (219) and (220) of those guidelines (see paragraph 89 et seq. above). This is confirmed by paragraph (69) of the Guidelines, which states that ‘environmental and energy aid is considered to be proportionate if the aid amount per beneficiary is limited to the minimum needed to achieve the environmental protection or energy objective aimed for’. Thus, where, as in the case at hand, the Member State pursues above all, by means of a capacity mechanism, the objective of ensuring security of supply and thus ‘improv[ing] the functioning of a secure, affordable and sustainable energy market’, that incentive effect is linked, primarily, to the incentives for operators to make available the generation capacities necessary for that purpose and, only secondarily, to the objective of environmental protection. As has been explained in paragraph 117 et seq. above, in the context of the Polish capacity mechanism, those incentives are based on the CAPEX criteria allowing operators to obtain multi-year capacity agreements, which gives them the necessary stability of revenue, also to finance or recoup their investments in the creation or modernisation of generation capacity.
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252 First, that line of argument disregards the fact that the aid at issue, namely the capacity payments, could be granted only following the authorisation of the aid scheme by the Commission, which took place on 7 February 2018, the entry into force of the Act and the close of the very first auction, scheduled for 2018, involving the allocation of the first capacity agreements for the first delivery year in 2021. Thus, the date of grant of the aid cannot be before that of the close of the first auction the result of which confers on the successful bidder, pursuant to the Act, the legal right to receive capacity payments (see, to that effect and by analogy, judgments of 21 March 2013, Magdeburger Mühlenwerke, C‑129/12, EU:C:2013:200, paragraphs 40 and 41; of 6 July 2017, Nerea, C‑245/16, EU:C:2017:521, paragraphs 32 and 33; and of 28 October 2020, INAIL, C‑608/19, EU:C:2020:865, paragraphs 30 to 34). Moreover, even assuming that Tempus sought to argue that the incentive effect must be linked to the entry into force of the aid scheme, namely in December 2017, such a line of argument would contradict its own finding that the taking into account of previous investment expenditure over a five-year period was permissible and gave rise to such an incentive effect.
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On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Tempus Energy Germany GmbH and T Energy Sweden AB to bear their own costs and to pay those incurred by the European Commission, PGE Polska Grupa Energetyczna S.A., Enel X Polska z o.o. and Enspirion sp. z o.o.;
3. Orders the Republic of Poland to bear its own costs.
Collins | Kreuschitz | Steinfatt |
Delivered in open court in Luxembourg on 6 October 2021.
[Signatures]