JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
20 September 2019 (*)
(State aid — Market for electricity generated from renewable sources — Measures setting a minimum purchase price for electricity generated from renewable energy sources or granting a bonus to producers of that electricity — Amendment of the initial measures — Decision declaring the aid scheme compatible with the internal market at the end of the preliminary examination stage — Article 107, paragraph 3(c) TFEU — Beneficiaries of the aid and shareholders of the beneficiaries — Legitimate expectations — State resources — Commission’s competence to examine the compatibility of the measures with other provisions of EU law than State aid)
in Case T‑217/17
FVE Holýšov I s. r. o., established in Prague (Czech Republic), and the other applicants whose names appear in the Annex, (1) represented by A. Reuter, H. Wendt, C. Bürger, T. Christner, W. Schumacher, A. Compes and T. Herbold, lawyers,
applicants,
v
European Commission, represented by L. Armati, P. Němečková and T. Maxian Rusche, acting as Agents,
defendant,
supported by
Czech Republic, represented by M. Smolek, J. Vláčil, T. Müller, O. Serdula and L. Dvořáková, acting as Agents,
by
Kingdom of Spain, represented initially by A. Gavela Llopis, and subsequently by A. Rubio González and S. Centeno Huerta, acting as Agents,
by
Republic of Cyprus, represented by E. Symeonidou and E. Zachariadou, acting as Agents,
and by
Slovak Republic, represented by B. Ricziová and M. Kianička, acting as Agents,
interveners,
APPLICATION pursuant to Article 263 TFEU for the partial annulment of 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 Union (OJ 2017 C 69, p. 2).
THE GENERAL COURT (Seventh Chamber),
composed of V. Tomljenović, President, E. Bieliūnas and A. Kornezov (Rapporteur), Judges,
Registrar: Registrar: E. Artemiou, Administrator,
having regard to the written part of the procedure and further to the hearing on 6 May 2019,
gives the following
Judgment
Background to the dispute
1 By a letter dated 16 December 2003, two Czech associations active in the renewable energy sector, the Czech Society for Wind Energy and Eurosolar, sent a complaint to the Commission of the European Communities, concerning, inter alia, a draft law of the Czech Republic seeking to promote electricity generated from renewable energy sources (‘RES’), the nature of that draft law being — they claimed — contrary to the EU State aid rules, and asking the Commission to contact the Czech authorities in order that they would notify the proposed aid scheme. The Commission informed the applicants, by a letter dated 27 July 2004 (‘the 2004 letter’), that, on the basis of the evidence in its possession, it considered that the proposed promotion system did not constitute State aid within the meaning of Article 107(1) TFEU, as it did not involve State resources.
2 The draft law referred to in paragraph 1 above was adopted as the Zákon o podpoře výroby elektřiny z obnovitelných zdrojů energie a o změně některých zákonů (zákon o podpoře využívání obnovitelných zdrojů) (Law on the support of the production of electricity from RES and amending various laws), of 31 March 2005 (180/2005 Sb.) (‘the initial scheme’).
3 The initial scheme established a number of measures for operators using electricity-generating facilities from RES (‘the producers concerned’), including photovoltaic installations.
4 The measures established by the initial scheme, guaranteed during the life of the installations (20 years for photovoltaic installations), could take two forms:
– either, for the producers concerned who chose to sell all the electricity which they produced to an operator of the electricity network, that of a minimum purchase price, set annually by the Energetický regulační úřad (Czech Energy Regulatory Office, ‘ERO’), established on the basis of, inter alia, the investment and operating costs of photovoltaic installations, which were to be recovered during the first 15 years of operation, the five remaining years constituting accordingly those producers’ profit (‘the purchase price’). Any potential reduction of the purchase price compared to that fixed in the previous year was subject to a 5% cap (‘the 5% cap’); in other words, the purchase price for a given RES-based technology implemented in a given year could not be less than 95% of the previous year’s purchase price for the same technology;
– or that of a ‘green bonus’ which represents a supplement to the market price for the producers concerned who chose to sell their electricity on the market.
5 The measures introduced by the initial scheme were financed exclusively by a special levy (‘the RES levy’), in the form of a surcharge on electricity transmission and electricity distribution tariffs, paid by electricity end customers to the electricity transmission system operator (‘the TSO’) and the regional electricity distribution companies (‘the DSOs’), with the result that end customers fully bore the burden of financing of those measures. That levy was imposed by the decree adopted by ERO and its amount determined by the latter by means of price decisions.
6 In 2010, the Czech Republic amended the initial scheme, on three occasions, on 21 April, 30 November and 14 December. The Czech Republic highlighted the fact that the initial scheme thus amended (‘the amended scheme’) was intended to avoid the risk of overcompensation, connected with the combined effect of the 5% cap and the decline in costs of photovoltaic installations, which has been higher than 5% for some years.
7 Consequently, with effect from 1 January 2011, the Czech Republic imposed on the producers concerned, inter alia, a levy known as ‘solar levy’, on the purchase prices and the green bonuses, granted to photovoltaic installations commissioned between 1 January 2009 and 31 December 2010 (except for certain small plants, with an operational capacity of less than 30 kilowatts).
8 The solar levy was equal to 26% of the purchase price for the period covering the years 2011 to 2013 and 10% of the purchase price from 1 January 2014. At the same time, the green bonus referred to in paragraph 4 above was taxed at 28% for the period covering the years 2011 to 2013 and 11% from 1 January 2014.
9 Other measures were also adopted under the amended scheme. Accordingly, the 5% cap was abolished for certain installations brought into service after 1 January 2011 and, on 31 December 2010, it put an end to the exemption from income tax, which had originally to be applicable for a period of 6 years.
10 The amended scheme therefore had the effect of reducing the benefits of the measures granted to the producers concerned using photovoltaic installations by way of the promotion of electricity production from RES.
11 From 1 January 2011, the amended scheme was financed partly by means of the RES levy and partly by the State budget.
12 On 11 December 2014, the Czech Republic, pursuant to Article 108(3) TFEU, notified the Commission of the support scheme for electricity production from RES, produced by installations commissioned between 1 January 2006 and 31 December 2012.
13 On 28 November 2016, the Commission adopted Decision C(2016) 7827 final on State aid SA.40171 (2015/NN) concerning the promotion of electricity production from SER, a summary of which was published in the Official Journal of the European Union (OJ 2017 C 69, p. 2) (‘the contested decision’).
Contested decision
14 First of all, in paragraphs 68 to 84 of the contested decision, the Commission found that the four cumulative conditions relating to the existence of State aid, within the meaning of Article 107(1) TFEU, were satisfied in the present case and that, consequently, the measures at issue constituted State aid.
15 Next, in paragraphs 87 to 90 of the contested decision, the Commission took the view that the measures at issue constituted new aid, as the 2004 letter could not be regarded as a decision not to raise objections under Article 4(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1).
16 In paragraph 93 of the contested decision, the Commission found the measures at issue, having regard to their environmental objective, to be an aid scheme compatible with the internal market under Article 107(3)(c) TFEU and in the light of the Community Guidelines on State aid for environmental protection (OJ 2001 C 37, p. 3) and the Guidelines on State aid for environmental protection (OJ 2008 C 82, p. 1) (‘the 2008 Guidelines’).
17 Moreover, the Commission took note of the fact that the Czech authorities had given an undertaking to put in place a review mechanism intended to prevent the risk of overcompensation that could result from the cumulation of investment aid measures with other types of operating aid, or an overestimation of any cost element taken into account in connection with the purchase price or the green bonus (‘the review mechanism’). It is clear from that undertaking that that mechanism should have entered into force in February 2019 for the installations commissioned during the period 2006 to 2008.
18 In addition, in paragraph 5 of the contested decision, the Commission replied to the observations of the interested parties, taking the view, in particular, as regards the principle of the protection of legitimate expectations, that the actual or potential beneficiaries of the initial scheme could not have based their legitimate expectations on unlawful State aid and that the 2004 letter contained only a provisional assessment concerning a draft law (paragraphs 136 and 137 of the contested decision). As regards the alleged infringement of the bilateral investment treaties and of the Energy Charter Treaty, signed in Lisbon on 17 December 1994 (OJ 1994 L 380, p. 24) (‘the ECT’), the Commission stated that any bilateral investment treaty (‘BIT’) containing a provision enabling recourse to an arbitrator to decide on a dispute within the European Union between an investor and a Member State was contrary to several provisions of the EU Treaty and the Treaty FEU (paragraphs 143 and 144 of that decision) and that it followed from the wording, the purpose and the context of the ECT that it did not apply to situations internal to the Union (paragraph 147 of that decision).
19 Lastly, in the operative part of the contested decision, the Commission stated that it was regrettable that the Czech Republic had already implemented the aid measure at issue, in infringement of Article 108(3) TFEU, declared the aid scheme notified as being compatible with the internal market on the basis of Article 107(3)(c) TFEU and therefore decided not to raise any objections to that aid scheme.
Procedure and forms of order sought by the parties
20 By application lodged at the Court Registry on 3 April 2017, the applicants, FVE Holýšov I s. r. o. and the other applicants whose names are included in the annex brought the present action.
21 On 3 July 2017, the Commission lodged its defence at the Court Registry.
22 By documents lodged at the Court Registry on 17 July, 1, 2 and 9 August 2017, respectively, the Kingdom of Spain, the Slovak Republic, the Czech Republic and the Republic of Cyprus applied for leave to intervene in the present case in support of the form of order sought by the Commission. By order of 17 November 2017, the President of the Seventh Chamber of the General Court granted them leave to intervene. The interveners lodged their statements in intervention and the main parties lodged their observations thereon within the periods prescribed.
23 In addition, the applicants having requested, in accordance with Article 144(7) of the Rules of Procedure of the General Court, by document lodged at the Court Registry on 29 September 2017, first, that certain information in Annex A.2 to the application, of a confidential nature, should not be communicated to the Czech Republic and, second, that that same information, as well as other information of the same nature, contained in other annexes to the application, should also be omitted when the application was sent to the other interveners, the President of the Seventh Chamber of the General Court, in the order referred to in paragraph 22 above, provisionally restricted the communication of the application to the non-confidential version produced by the applicants, pending any observations by the interveners on the requests for confidential treatment.
24 The reply was lodged at the Court Registry on 20 November 2017.
25 By letter of 13 December 2017, the Czech Republic raised objections to the request for confidential treatment brought by the applicants with regard to it.
26 On 30 January 2018 a rejoinder was lodged at the Court Registry.
27 By order of 25 June 2018, the President of the Seventh Chamber of the General Court rejected the request for confidential treatment submitted by the applicants in respect of the Czech Republic and ordered that the latter be sent a full version of Annex A.2 to the application.
28 On 13 and 24 August 2018 respectively, the applicants and the Commission requested that a hearing be held.
29 Also on 24 August 2018, the Commission made an offer of evidence, pursuant to Article 85(3) of the Rules of Procedure.
30 On 5 October 2018, the applicants expressed their views on the Commission’s offer of evidence, stating that that offer was not confidential. In turn, they made an offer of evidence.
31 On 26 October 2018, the Commission requested the Court to adopt a measure of organisation of procedure, pursuant to Article 89 of the Rules of Procedure, in order that the arbitral award to which the applicants had referred be produced in its entirety.
32 On 2 November 2018 and 4 January 2019 respectively, the Czech Republic lodged its observations at the Court Registry concerning, first, the Commission’s offer of evidence of 24 August 2018 and the one made by the applicants on 5 October 2018 and, second, the request for a measure of organisation of procedure proposed by the Commission.
33 On 18 January 2019, the applicants produced in its entirety the document requested by the Commission (see paragraph 31 above). The latter set out, on 11 February 2019, its observations in that regard, as did the Kingdom of Spain on 27 February 2019.
34 On 28 March 2019, the Slovak Republic informed the Court Registry that it waived its right to attend the hearing.
35 The applicants claim that the Court should:
– annul in part the contested decision;
– order the Commission to pay the costs;
– order the interveners or the Commission to pay the costs connected with the interventions.
36 The Commission and the Slovak Republic contend that the Court should:
– dismiss the action as inadmissible;
– in the alternative, dismiss the action as unfounded;
– order the applicants to pay the costs.
37 The Czech Republic states that it shares the Commission’s arguments and concludes that the action should be dismissed as unfounded and that the applicants should be ordered to pay the costs.
38 The Kingdom of Spain supports the form of order sought by the Commission in so far as it contends that the action should be dismissed.
39 The Republic of Cyprus, without presenting any specific forms of order sought, focuses its arguments on the Commission’s analysis in paragraphs 143 to 150 of the contested decision, which it considers to be entirely well founded.
Law
Admissibility
40 The Commission, without having formally raised a plea of inadmissibility by a separate document within the meaning of Article 130(1) of the Rules of Procedure, supported on this point by the Slovak Republic, argues in particular that the action is inadmissible for lack of interest in bringing proceedings. It takes the view that the contested decision is favourable to the applicants, since it unconditionally declares the aid scheme to be compatible with the internal market. In its opinion, the interest claimed by the applicants stemming from the fact that some of them are parties to arbitration proceedings brought against the Czech Republic, in which that decision is relevant, is not legitimate on the ground that those proceedings, which are based on BITs concluded between two Member States or on the ECT and relating to internal investment in the European Union, are incompatible with EU law.
41 It should be recalled in that regard that the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of an action on the merits without a prior ruling on its admissibility (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52, and of 14 September 2016, Trajektna luka Split v Commission, T‑57/15, not published, EU:T:2016:470, paragraph 84).
42 In the present case, it is appropriate to examine the substance of the action and, as the case may be, to not rule on its admissibility.
Substance
43 The applicants put forward seven pleas in law in support of the action, by which, as they stated at the hearing, they seek annulment of the contested decision in so far as in that decision the Commission categorised the initial scheme as State aid, formal note of which was taken in the minutes of the hearing.
44 The applicants submit, first, that the 2004 letter constitutes a final decision whereby the Commission concluded that there was no State aid; second, that the Commission infringed the principle of the protection of legitimate expectations with regard to them and the principle of legal certainty; third, that the measures in question do not constitute State aid; fourth, that the Commission used overreaching requirements in its compatibility assessment of the measures in question with the internal market; fifth, that the contested decision is vitiated by a procedural irregularity; sixth, that the Commission infringed Article 5(1) TEU, and, seventh, that the contested decision is vitiated by manifest errors of assessment.
The first plea in law, alleging that the 2004 letter constitutes a final decision which is still in force
45 The applicants submit, in essence, that the 2004 letter, in which the Commission concluded that the initial scheme did not constitute State aid, is a binding final decision and that, consequently, the Commission could not adopt the contested decision on account of the definitive nature of that ‘2004 decision’, which is still in force. In other words, the Commission should have repealed that ‘decision’ before adopting the contested decision, which it did not do.
46 The Commission, supported by the Czech Republic, opposes the applicants’ arguments.
47 It is necessary to indicate, at the outset, that, according to settled case-law, it is in principle those measures which definitively determine the position of the Commission upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the applicants, which constitute in principle decisions within the meaning of Article 288 TFEU, and not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects (see, to that effect, judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42 and the case-law cited).
48 As the applicants claim, it is, in principle, irrelevant to the categorisation of the act in question whether or not it satisfies certain formal requirements, namely that it is duly named by its author, that it be sufficiently reasoned, and that it mentions the provisions providing the legal basis for it. It is therefore irrelevant that the act may not be described as a ‘decision’ or that it does not refer to Article 4(2), (3) or (4) of Regulation No 659/1999, then applicable. It follows that, to determine whether an act in matters of State aid constitutes a decision within the meaning of Article 4 of that regulation, it is necessary to ascertain whether, taking account of the substance of that act and the Commission’s intention, that institution has, at the end of the preliminary examination stage, definitively established its position — by way of the act under consideration — on the measure under review and, therefore, whether it has decided that that measure constituted aid or not, that it had no doubts as regards its compatibility with the internal market, or that it did have such doubts (see, to that effect, judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraphs 44 and 46 and the case-law cited). That question must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (see judgment of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 55 and the case-law cited, judgment of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraph 59).
49 In the first place, as regards the content of the 2004 letter, it should be noted that it does not support the conclusion that that letter was of the nature of a decision. Although it is true that certain passages of that letter indicate that the Commission’s services ‘found’ that there were insufficient grounds for continuing the investigation or that the measure at issue did not involve State resources, it must be stated that those services specified, first, that their assessments were made ‘on the basis of the information available’, namely, inter alia, a ‘draft law’, and, secondly, at the end of the letter, that they invited the applicants, if they were to have new particulars that might demonstrate an infringement of the State aid rules, to inform them as soon as possible. It follows that those services reserved the right to alter their position if new information were to be provided, which also shows that the letter in question was not of a decisional or definitive nature. That is further confirmed by the fact that there is no operative part capable of producing binding legal effects. Such a letter must therefore be regarded as a mere legal opinion, with an invitation to provide the Commission’s services with new information, which is not capable of producing legal effects (see, by analogy, judgment of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraph 62). Moreover, it should be noted that it is clear from a letter from the Commission of 9 February 2010, produced in Annex A 17.b of the application (see footnote No. 1), that the Commission ‘has never formally expressed its opinion on the measure [at issue] in the form of a decision.’
50 In the second place, as regards the Commission’s competencies, the 2004 letter follows a complaint lodged by two associations on 16 December 2003, in which they relied on the incompatibility with the rules of EU law on State aid, in particular of a draft law on the promotion of electricity generated from RES. It is apparent from the wording of that letter that it therefore concerned only a draft law. It is also common ground that the measures which were the subject of the draft law were, at the time when that letter was sent, neither notified by the Czech authorities nor implemented.
51 However, Regulation No 659/1999 did not authorise the Commission to adopt a decision following a complaint about planned aid which was neither notified nor put into effect.
52 Indeed, under Article 4(2) of Regulation No 659/1999, on which the applicants rely, ‘where the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision’. Clearly, that provision applied solely to procedures relating to notified aid, as is also stated in the heading of Chapter II of that regulation, under which the article in question is to be found, namely ‘Procedure regarding notified aid’. However, in 2004, when the 2004 letter was sent, there was no such procedure.
53 The applicants also claim that the 2004 letter constitutes a decision pursuant to Articles 10 and 13 of Regulation No 659/1999. However, those two provisions form part of Chapter III of that regulation, headed ‘Procedure regarding unlawful aid’. Article 10(1) of that regulation provides: ‘where the Commission has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay’. According to Article 13(1) of that regulation, ‘the examination of possible unlawful aid shall result in a decision pursuant to Article 4(2), (3) or (4).’ It follows that those provisions were applicable, as correctly pointed out by the Commission, solely to ‘unlawful’ aid procedures. ‘Unlawful aid’ is defined by Article 1(f) of the Regulation as ‘new aid put into effect in contravention of Article 93(3) [EC Treaty].’ However, as has been stated in paragraph 50 above, the measure criticised in the complaint at issue and to which that letter related was not unlawful aid, since it had not yet been implemented but was merely at the stage of a draft law.
54 Consequently, the 2004 letter could not constitute a decision within the meaning of Regulation No 659/1999, contrary to what the applicants claim.
55 Nor have the applicants reason to claim that that interpretation results in allowing the Member States to circumvent the State aid rules by ‘simple failure to make a notification’. It is sufficient to note in that regard, first, that, as regards a non-notified measure, the Commission is competent, by virtue of the provisions referred to in paragraph 53 above, to adopt decisions where such a measure is put into effect in infringement of the obligation to notify and, second, that if a non-notified measure remained at the planning stage and was not implemented, it is not liable to distort or threaten to distort competition by favouring certain undertakings or the production of certain goods within the meaning of Article 107 TFEU, with the result that it does not fall within the scope of the EU State aid rules.
56 Moreover, it should be stated that the 2004 letter was signed by the Director of the ‘State Aid 1’ Directorate of the Commission’s Directorate-General for Competition. However, in accordance with Article 219 EC (now Article 250 TFEU) and Article 1 of the Commission’s Rules of Procedure (C(2000) 3614) (OJ 2000 L 308, p. 26), then applicable, Commission decisions in that domain are adopted by the college of Commissioners. That also shows that that letter is not of a decisional nature.
57 In the third place, as regards the context in which the 2004 letter was addressed to the applicants, it must be stated, as was pointed out in paragraph 50 above, that that letter followed a complaint concerning measures contained in draft law which had not been notified by the Czech authorities or put into effect. In that regard, at the hearing, the Commission stated, without being contradicted on that point by the applicants, that the dispatch of that letter was part of a common practice on its part which, in compliance with the principle of sound administration, was intended to give a useful answer to the applicants in a context, such as that of the present case, in which it was not empowered to adopt a decision. Moreover, as the applicants themselves concede, following the letter in question, the Commission’s services contacted the Czech authorities on several occasions and asked them for additional information and clarification about the initial scheme, which also shows that that letter was not of a decisional or definitive nature.
58 Furthermore, even assuming that the 2004 letter constitutes a decision within the meaning of the Treaty or Regulation No 659/1999, it cannot prevent the Commission from adopting a decision such as the contested decision or compel it to first ‘revoke’ the ‘2004 decision’ before adopting the contested decision.
59 Like the Commission and the Czech Republic, it must be stated that the scheme for the promotion of electricity production from RES, which was notified in 2014, is substantially different from that of the draft law, referred to in paragraph 1 above, which had been brought to the Commission’s attention in 2003. In particular, it should be noted, as the Commission claims without having been challenged by the applicants, that, unlike the initial scheme, that draft law did not indicate that the RES levy, by which that scheme was to be financed, would be imposed on end customers by an act of the public authorities. That factor was, according to the Commission, decisive, as to the question of whether that scheme involved State resources (see paragraphs 96 to 127 below). Therefore, the fact that, in the 2004 letter, the Commission’s staff had taken the view, on the basis of that draft law, that the planned measure did not involve such resources did not prevent the Commission from concluding, in the contested decision, without first ‘revoking’ that letter, that the scheme in question constituted State aid on the basis of, inter alia, the law adopted in 2005 and various measures enacted subsequently for the purposes of its implementation.
60 Lastly, in the reply, the applicants add that the Commission was also bound by a ‘2006 decision’ which it had made following an investigation in 2005. However, first, because the applicants failed to precisely identify that ‘decision’ and to add it to the file, the General Court is not in a position to make a meaningful decision on that head of claim, so that it must be dismissed as being inadmissible in application of Article 76(d) of the Rules of Procedure (see, to that effect and by analogy, order of 24 March 1993, Benzler v Commission, T‑72/92, EU:T:1993:27, paragraph 18). Second, that head of claim is also inadmissible on the grounds of it being out of time, the latter being advanced, for the first time, in the reply, without any justification for its late presentation, contrary to the requirements of Article 84(1) of the Rules of Procedure (see, to that effect, judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 71).
61 Consequently, the first ground of appeal must be rejected as unfounded as regards the ‘2004 decision’ and as being inadmissible as regards the ‘2006 decision’.
The second ground of appeal, alleging infringement of the principles of the protection of legitimate expectations and legal certainty
62 The applicants claim that the principles of the protection of legitimate expectations and legal certainty precluded the Commission, in the contested decision, from concluding that the initial scheme constituted State aid. They put forward several factors which can demonstrate, in their view, that they could legitimately expect that scheme to not constitute State aid.
63 Thus, the applicants claim that, even if the 2004 letter was not to be regarded as a decision, they could legitimately believe, on the basis of that letter, that the investments which they had made in the context of the initial scheme, which, as regards renewable energies, require legal certainty and legitimate expectations which are even greater than in other areas, were not subject to the State aid rules. In that letter, according to the applicants, the Commission took into account not only the draft law mentioned in paragraph 1 above, attached to the 2003 complaint, but also the additional information received at the time from the Czech Republic. Furthermore, during 2005, 2007 and 2009, after having asked that Member State, as is apparent from the application, ‘essentially the same information … as … asked for in 2004’, the Commission neither opened a new investigation nor adopted another decision, which, according to the applicants, showed that it considered that the 2004 letter was correct, sufficient and appropriate on the issue.
64 The Commission contends that that plea in law is ineffective and, in any event, unfounded.
65 As to the ineffective nature of the second plea, the Commission takes the view, first, that it is based on the incorrect premise that the 2004 letter constitutes a decision. Since that is not the case, the second plea should be rejected.
66 According to the case-law, for a plea relating to infringement of the principle of the protection of legitimate expectations to be upheld, the individual concerned must prove that an EU institution, by giving him precise assurances, has led him to entertain justified expectations. Information which is precise, unconditional and consistent, in whatever form it is given, constitutes such assurances (judgment of 12 October 2016, Land Hessen v Pollmeier Massiveholz, C‑242/15 P, not published, paragraph 63).
67 In their second plea, the applicants submit, inter alia, that the 2004 letter, irrespective of whether or not it is a decision, gave rise to legitimate expectations on their part that there was no aid as regards the initial scheme. Since the case-law referred to in paragraph 66 above does not require that the ‘assurances’ provided by the institution in question, in order to be capable of giving rise to legitimate expectations, are of a decisional nature, stating, on the contrary, that the form of those assurances is irrelevant, the Commission’s objection must be rejected.
68 The Commission also argues that, in the area of State aid, a plea based on the principle of the protection of legitimate expectations can concern only the recovery of the aid, whereas, in the present case, the contested decision does not order the recovery of the aid in question. However, it must be stated that no rule of EU law limits reliance on the principle of the protection of legitimate expectations in relation to State aid solely to the question of the recovery of aid which is unlawful and incompatible with the internal market. The principle of the protection of legitimate expectations is a general principle of EU law (judgment of 19 May 1992, Mulder and Others v Council and Commission, C‑104/89 and C‑37/90, EU:C:1992:217, paragraph 15), which, as such, is applicable in any context falling within the scope of EU law. In the present case, the applicants may therefore rely on that principle in order to argue that the Commission caused them to entertain legitimate expectations that the initial scheme did not constitute State aid.
69 Therefore, the Commission’s objections as to the ineffective nature of the second plea must be rejected.
70 As regards the substance, first, it should be noted, as has already been mentioned in paragraph 49 above, that it is true that the 2004 letter states that, on the basis of the information available to the Commission at the time, the draft law referred to in paragraph 1 above was not capable of establishing State aid. However, it cannot be argued that, by that letter, the Commission had provided precise, unconditional and consistent information as to the absence of aid in the initial scheme as notified and as examined in the contested decision.
71 Indeed, on the one hand, as has also been noted in paragraph 49 above, in the 2004 letter the Commission’s services reserved the right to alter their position if new evidence had to be provided so that the information contained in it could not be regarded as unconditional.
72 On the other hand, as stated in paragraph 59 above, the Commission’s services were not aware of the fact that the scheme envisaged was going to be financed by a levy imposed on end customers by an act of the public authorities, which was not apparent from the draft law referred to in paragraph 1 above. Moreover, that levy materialised only at the time of the adoption, from 2005 onwards, of the decrees and pricing decisions adopted by the ERO and referred to in paragraph 21 of the contested decision and in footnote 10 relating thereto. Since the Commission’s services did not possess that information in 2004, the 2004 letter cannot be regarded, for that reason, too, as containing precise, unconditional and consistent assurances that the scheme for the promotion of electricity production from RES, as notified in 2014 and as is apparent from the law adopted in 2005, by the decrees and the pricing decisions of ERO, all of which were adopted after that letter was sent, did not constitute State aid.
73 Consequently, that plea cannot succeed.
74 Secondly, according to the applicants, the Commission encouraged the Czech Republic to intensify its efforts to attract investors in the renewable energy sector, on the ground that it had not achieved the objectives set out in EU legislation as regards the percentage of electricity to be generated from RES. In that regard they refer to the Communication from the Commission to the Council and the European Parliament, of 10 January 2007, entitled ‘Green Paper follow-up action — Report on progress in renewable electricity’ [COM(2006) 849 final] and the Communication from the Commission to the Council and the European Parliament, of 24 April 2009, entitled ‘The Renewable Energy Progress Report: Commission Report in accordance with Article 3 of Directive 2001/77/EC, Article 4(2) of Directive 2003/30/EC and on the implementation of the EU Biomass Action Plan’ [COM(2009) 192 final].
75 However, the reports referred to in paragraph 74 above examine solely the question of whether the Member States have achieved the objectives set out in EU legislation, in particular in terms of the annual energy having to be generated from RES. They are therefore not intended to apply the EU State aid rules to the sector at issue and make mere references in that regard, for example, by recalling that, in the case of compensatory payments, those payments must comply with the State aid rules (Communication from the Commission to the Council and the European Parliament of 10 January 2007, p. 9). Consequently, they contain no position on whether or not the initial scheme established by the Czech Republic constitutes State aid within the meaning of Article 107 TFEU.
76 Thirdly, the applicants refer to a letter dated 11 January 2011 addressed to the Czech authorities in which two members of the Commission criticised the amendments to the initial scheme envisaged, insisting that the scheme in question had to be foreseeable in order to avoid the adverse consequences of investors’ legitimate expectations. It is, however, clear that that letter draws the attention of the Czech authorities to their obligation to comply with the principle of the protection of legitimate expectations, and does not concern the question of whether the Commission has complied with that principle. The question whether the Czech Republic has observed that principle is not covered by the second plea in law. Moreover, that letter does not even mention the EU State aid rules and does not take any position on the categorisation of the initial scheme as State aid.
77 Fourthly, according to the applicants, it is clear from the minutes of a meeting between the Commission and the Czech Republic of 21 October 2014 that the Commission ‘discouraged’ that Member State from notifying the aid scheme in question. However, that head of claim has no factual basis, since the minutes of that meeting, produced in Annex A.19b to the application, in no way show that the Commission expressed any position at the time as to whether that scheme constituted State aid. The passages of those minutes cited by the applicants in paragraph 88 of the application support that analysis. Therefore, the content of that meeting could not have given rise to legitimate expectations that, upon notification, the Commission would consider that that scheme did not constitute State aid.
78 Fifthly, the applicants consider that the Commission took unreasonably long to adopt the contested decision, thereby infringing its duty of diligence and increasing their legitimate expectations. However, it must be stated that the duration of the administrative procedure, even if it were excessive, or the fact that, between 2004 and 2014, no investigation or ‘any additional measure’ has been put in place by the Commission, cannot in any way be regarded as precise, unconditional and consistent assurances that there is no State aid.
79 Sixthly, the applicants take the view that they are in ‘exceptional circumstances’ and rely in that regard on Advocate General Jacob’s Opinion in SFEI and Others (C‑320/94, EU:C:1995:445, paragraph 76). However, that case is clearly distinguishable from the present case. In the judgment delivered following that Opinion, the Court stated that a national court before which an application has been made seeking that it should draw the appropriate conclusions from the infringement of the last sentence of Article 108(3) TFEU, when the matter had also been referred to the Commission and it had not yet given a ruling on the question whether the State measures at issue constituted State aid, had to grant a request to order the recovery of the aid, if it found that the aid had not been notified to the Commission, unless, by reason of exceptional circumstances, the repayment was inappropriate (judgment of 11 July 1996, SFEI and Others, C‑39/94, EU:C:1996:285, paragraph 71). The present case concerns neither the restitution of the aid in question nor a situation where a national court has such a case before it, where the Commission has not yet ruled on the question whether the State measures at issue constituted State aid.
80 Seventhly, as regards the applicants’ argument that the principle of the protection of legitimate expectations required the Commission to grant them a transitional period before the amendments to the initial scheme started applying to them, in accordance with the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), and, in the present case, to set that period at 20 years, the following must be stated.
81 In the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), the Court held that the Commission had given rise to legitimate expectations on the part of the beneficiaries of the aid in question, namely coordination centres for which a reaccreditation request was pending at the date of notification of the decision at issue in the cases which gave rise to that judgment, or whose authorisation expired at the same time as or shortly after its notification, that a transitional period would be granted to them in order to enable them to adapt to the consequences of that decision declaring the State aid incompatible with the internal market. Indeed, first, in those cases, the Commission had adopted two previous decisions in which it concluded that there was no aid element. Next, in the decision at issue in those cases, the Commission acknowledged that it had changed its assessment as regards the measure at issue and, moreover, itself accepted the existence of legitimate expectations as regards the beneficiaries of that aid. Finally, the Commission had itself granted a transitional period to the coordination centres having an approval which was ongoing at the date of the notification of the contested decision, but excluding from that period the other abovementioned centres.
82 It must be stated that none of those circumstances exist in the present case. Unlike the cases giving rise to the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), the Commission did not, in the present case, give rise to any legitimate expectations on the applicants’ part either as regards the fact that the initial scheme would be maintained as such, without any amendment whatsoever, or with regard to the fact that it did not constitute State aid. Nor did it declare the aid incompatible with the internal market. It is also not established that the Commission changed its assessment of the measure as is apparent in particular from paragraphs 59 and 72 above. Finally, the Commission did not grant a transitional period in favour of only certain recipients of the aid, to the exclusion of the others. The applicants cannot therefore validly rely on that judgment.
83 Finally, eighthly, the applicants argued, at the hearing, that the principle of the protection of legitimate expectations should be interpreted in the light of the judgment of 10 September 2009 in Plantanol (C‑201/08, EU:C:2009:539). In that judgment, the Court held that the principle of the protection of legitimate expectations did not preclude, in principle, a tax exemption scheme being discontinued before the expiry date laid down in the applicable legislation and that such withdrawal did not require the existence of exceptional circumstances. It stated, in that regard, that it was necessary to carry out an overall assessment in the specific case, taking account of all the relevant circumstances of the case, in order to examine whether that principle was observed (judgment of 10 September 2009, Plantanol, C‑201/08, EU:C:2009:539, paragraph 67). Amongst the circumstances referred to by the Court in the case giving rise to that judgment, which are also relevant in the present case, are the relevant regulatory context (see, to that effect, judgment of 10 September 2009, Plantanol, C‑201/08, EU:C:2009:539, paragraphs 61 and 62). In the present case, as is apparent from paragraphs 140 to 142 below, the legal framework of the European Union in relation to State aid prohibit that the measures in question lead, in any way, to overcompensation. Consequently, the applicants cannot base a legitimate expectation on the fact that EU law guaranteed them the maintenance of a scheme capable of resulting in overcompensation.
84 As regards the expectation which an operator might have as to the application of a tax advantage, the Court has held that when a directive on fiscal matters gives wide powers to the Member States, a legislative amendment adopted under the directive cannot be considered to be unforeseeable (judgment of 10 September 2009, Plantanol, C‑201/08, EU:C:2009:539, paragraph 54). In transposing the principles set out by the Court to the present case, it should be noted that Member States have broad discretion as to what measures should be taken to achieve the objectives set out in Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16), and that, in any event, in the case, the applicants cannot avail themselves of any right to maintain a State aid scheme (see, to that effect, order of 23 November 2015, Milchindustrie-Verband and Deutscher Raiffeisenverband v Commission, T‑670/14, EU:T:2015:906, paragraph 29). In any event, the Commission cannot be criticised for infringing, in the contested decision adopted in 2016, the applicants’ legitimate expectations by failing to impose a transitional period for the purposes of the entry into force of the amended scheme which had already been adopted in 2011.
85 Therefore, in the light of all the foregoing, the second plea must be rejected in its entirety as unfounded.
The third plea, alleging that the initial scheme does not constitute State aid
86 The third plea in law comprises two parts. By the first part, the applicants claim that the Commission’s conclusion that the initial scheme provided for a compulsory levy charged to end customers was based on incorrect facts, because, in reality, that scheme provided only for the possibility for the ISO or the DSOs to pass on to the end customers, by the additional cost resulting from the purchase price of energy from RES. By the second part, they argue that that scheme did not involve any State resources and therefore the State’s budget would not have been affected by the scheme in question.
– First part of the third plea in law
87 According to the applicants, the TSO and the DSOs were simply required to purchase electricity generated from RES at a minimum price, leaving them free to ask their customers for a price supplement to cover that additional cost. It is clear from the case-law that the fixing of minimum prices by the State or its authorities does not constitute State aid. The fact that some of the operators in question are public does not alter that conclusion. In particular, no State guarantee is provided for in order to offset the additional costs associated with purchasing electricity from RES. The contested decision therefore, in their view, infringes Article 107(1) TFEU, as interpreted by the case-law.
88 The Commission, supported by the Czech Republic, opposes those arguments.
89 In paragraph 21 of the contested decision, the Commission observed that the initial scheme was financed entirely by the levy payable to the TSO and the DSOs by electricity end users. That levy was imposed, according to that decision, by various decrees adopted by the ERO (first by the amendment, in 2005, of Decree 438/2001, and subsequently by the adoption of Decree 150/2007 and Decree 140/2009, subsequently amended, as is stated in footnote 10 to that decision) and by the pricing decisions it has adopted, referred to in footnotes 10 and 11 to that decision. In paragraph 22 of the contested decision, the Commission found that the regulatory framework in force in the years 2006 to 2010 provided that the TSO and the DSOs pass on all the additional costs arising from the purchase of renewable energy from end customers in the form of transmission and distribution charges, so that the end customers bore the full burden for financing the initial scheme.
90 Those findings are not vitiated by any error of fact. As the Commission and the Czech Republic explain, the regulatory framework governing the initial scheme provided for the introduction of the RES levy, special and compulsory levy, imposed by law on end customers and intended to be used to finance that scheme. In that regard, it should be noted, in particular, that, as is apparent from the regulatory framework, a copy of which has been annexed to the application and reference to which has been made in the submission of the Commission and the Czech Republic, according to paragraph 5 of the ERO decision No 14/2005 of 30 November 2005, ‘the costs to cover the extra costs related to [the] support of electricity from renewable sources … is CZK [Czech crowns] 28.26/MWh. The price is charged by the TSO or DSO[s] for the amount of electricity supplied to end customers’. The wording of that provision, and in particular the use of the words ‘the price is charged’, implies the mandatory nature of invoicing, as the Czech Republic confirmed at the hearing. Similarly, under section 5, paragraphs 5 and 6, of Decree No 541/2005 of the ERO, the regulated price ‘must be paid’ (‘is to be paid’ in the English translation produced by the applicants), which, in the case of end customers, includes the price intended to offset expenditure relating to the promotion of energy generated from RES. The compulsory nature of that levy is also apparent, as the Czech Republic stated in its statement in intervention (paragraph 48), from the wording of Article 32(1) of that decree, according to which the billing of the distribution or transmission of electricity to a final customer ‘always contains’ separately quantifiable information on the price to cover the additional costs associated with the promotion of [RES] electricity. For subsequent years, the Commission and the Czech Republic have stated that similar provisions were to be found in Decrees No 150/2007 and No 140/2009 of the ERO.
91 It does not follow from the provisions referred to in paragraphs 89 and 90 above that the RES levy is ‘optional’, as the applicants claim, or that the TSO and the DSOs remain free to choose whether they pass on to the end customers or whether they themselves absorb the additional cost for the purchase of energy from RES.
92 Although the applicants claim that the RES levy was not obligatory, they do not rely on any specific provision of national law able to support their argument. Although they refer in that regard to Article 50 of Law No 458/2000 and Article 2 of Decree No 150/2007 of the ERO, a copy of which they annexed to the application, it should be noted that those provisions do not govern the imposition of that levy. Article 50(4) and (5) of that law merely provides that the TSO and the DSOs undertake to convey the agreed amount of electricity to producers, traders or customers, and that the latter undertake to pay the regulated price. Article 2 of that decree provides that the ERO regulates the price for compensation for expenses connected with the RES promotion. It is therefore in no way apparent from those provisions that the TSO and the DSOs are not legally obliged to charge that levy to end customers.
93 The applicants add that the fact that the RES levy is not compulsory derives from the fact that the relationship between the TSO and the DSOs and their customers were contractual relations and that the imposition of that levy doesn’t therefore result from an obligation of public law. However, it is sufficient to observe in that regard that neither the purchase price nor the imposition of that levy is the result of the exercise of the freedom to contract, but of acts of the public authorities. Moreover, the Czech Republic submits, in that regard, in its statement in intervention, that, if that levy were not charged to end consumers, the TSO and the DSOs would be subject to administrative penalties. In any event, the applicants have adduced no evidence capable of demonstrating the existence of cases where the levy in question has not been imposed or contracts stipulating the exclusion of the obligation to pay that levy.
94 Lastly, the applicants submit, as an annex to their application, the opinion of a lawyer which it states in particular that, from 2006 to 2012, the laws of the Czech Republic did not ‘set forth an obligation of the TSO and/or the DSOs to charge the RES cost to the customers’ (Annex A.21, p. 279). However, it is sufficient to note in that regard that that opinion does not even mention the provisions set out in paragraphs 89 and 90 above. That opinion does not therefore conduct a full analysis of the regulatory framework applicable to the initial scheme, with the result that its conclusions cannot be credited.
95 In those circumstances, it must be concluded that the Commission did not err in finding that, under the initial scheme, the RES levy was a compulsory levy imposed by law on end customers. Consequently, the first part of the third plea must be rejected.
– The second part of the third plea
96 The applicants take the view, in essence, that the initial scheme did not involve State resources and cannot therefore be classified as aid, in accordance with the case-law arising from the judgments of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), and of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268). While they accept, in paragraphs 150 and 152 of the application, that the measures notified by the Czech Republic on 11 December 2014 refer, in part, to direct financing by the State budget, that is correct only as regards the amended scheme, and not the initial scheme. In that regard, the applicant clarified at the hearing that their application to quash the contested decision is only for the State aid characterisation of the initial scheme (see paragraph 43 above).
97 It must be stated at the outset in that regard that, while categorisation as State aid within the meaning of Article 107(1) TFEU presupposes that four conditions are met, namely, that there is an intervention by the State or through State resources, that the intervention is liable to affect trade between Member States, that it confers a selective advantage on the beneficiary and that it distorts or threatens to distort competition (see judgment of 19 December 2013, Association Vent De Colère ! and Others, C‑262/12, EU:C:2013:851, paragraph 15 and the case-law cited), the second part of the third plea concerns the first of those conditions only.
98 For it to be possible to classify advantages as State aid within the meaning of Article 107(1) TFEU, first, they must be granted directly or indirectly through State resources and, secondly, that grant must be attributable to the State (judgment of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 24; of 30 May 2013, Doux Élevage et Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 27, and of 19 December 2013, Association Vent De Colère ! and Others, C‑262/12, EU:C:2013:851, paragraph 16).
99 As regards, in the first place, the condition that the measure must be attributable to the State, it is necessary to examine whether the public authorities must be regarded as having been involved in the adoption of that measure (see judgment of 19 December 2013, Association Vent De Colère ! and Others, C‑262/12, EU:C:2013:851, paragraph 17 and the case-law cited).
100 In that regard, it must be noted that the initial scheme was established by a law passed in 2005 (see paragraph 2 above) and that the RES levy was imposed under the ERO decrees and price decisions referred to in paragraphs 89 and 90 above and that they must therefore be considered to be attributable to the State.
101 As regards, in the second place, the condition that the advantage must be granted directly or indirectly through State resources, it is to be recalled that measures not involving a transfer of State resources may fall within the concept of aid (see judgment of 19 December 2013, Association Vent De Colère ! and Others, C‑262/12, EU:C:2013:851, paragraph 19 and the case-law cited).
102 The concept of ‘intervention through State resources’, is intended to cover, in addition to advantages granted directly by the State, those granted through a public or private body appointed or established by that State to administer the aid (see judgments of 17 March 1993, Sloman Neptun, C‑72/91 and C‑73/91, EU:C:1993:97, paragraph 19; of 19 December 2013, Association Vent De Colère ! and Others, C‑262/12, EU:C:2013:851, paragraph 20 and the case-law cited, and 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 52).
103 The distinction made in that provision between ‘aid granted by a Member State’ and aid granted ‘through State resources’ does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (judgments of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 58; and of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 26).
104 EU law cannot permit the State aid rules to be circumvented merely through the creation of autonomous institutions charged with allocating aid (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 23; of 9 November 2017, Commission v TV2/Danmark, C‑656/15 P, EU:C:2017:836, paragraph 45; and of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 54).
105 It also follows from the case-law of the Court of Justice that it is not necessary to establish in every case that there has been a transfer of State resources for the advantage conferred on one or more undertakings to be capable of being regarded as State aid, within the meaning of Article 107(1) TFEU (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 36; of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 34; and of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 55).
106 Article 107(1) TFEU covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Therefore, even if the sums corresponding to the measure in question are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as ‘State resources’ (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 37; of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 35; and of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 57).
107 It has also been held that funds financed through compulsory charges imposed by the legislation of the Member State, managed and apportioned in accordance with the provisions of that legislation, may be regarded as State resources within the meaning of Article 107(1) TFEU even if they are managed by entities separate from the public authorities (see, to that effect, judgments of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 35; of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 25; and of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 58).
108 The decisive factor, in that regard, consists of the fact that such entities are appointed by the State to manage a State resource and are not merely bound by an obligation to purchase by means of their own financial resources (see judgment of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 59 and the case-law cited).
109 The second part of the first plea must be considered in the light of those criteria.
110 In the present case, the initial scheme was financed entirely by means of the RES levy imposed by regulatory acts of the public authorities. That levy was compulsorily charged to end customers by the TSO and the DSOs, which thus collected the income from that levy. For the reasons set out in paragraphs 90 to 95 above, the Court must reject the applicants’ argument that the initial scheme was limited to providing for an obligation to purchase at minimum prices and the possibility, but not the obligation, for the TSO and the DSOs to pass on to end customers the higher price of energy generated from RES resulting from the purchase price.
111 First, it is thus apparent that the RES levy charged, by virtue of the law, to end customers, the compulsory nature of which has been noted in paragraphs 90 to 95 above, has, in essence, the nature of a parafiscal charge levied on electricity on the basis of an objective criterion, namely the quantity of kilowatts/time being transported. The amounts collected from that levy therefore have their origin in a State resource (see, by analogy, judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 66).
112 Secondly, for the purposes of collecting that levy, the Czech Republic appointed the TSO and the DSOs to charge the RES levy and to collect the resulting funds. In that regard, it should be noted that the TSO is wholly owned by that State, as is apparent from the statement in intervention of the Czech Republic, which also predominantly owns the largest of the DSOs, namely ČEZ, which itself has in turn owned five of the eight initial DSOs, as is apparent from a letter of 18 October 2005 from the Czech authorities to the Commission annexed to the application. The Commission had itself stated, in paragraph 74 of the contested decision, that the TSO and the DSOs were in the majority held by the public authorities.
113 Thirdly, the TSO and the DSOs were designated by law to administer the initial scheme under the control of the State.
114 Thus, on the one hand, the monies collected by the TSO and the DSOs are subject to an equalisation scheme adopted and controlled by the State, as is apparent from paragraph 111 of the defence and the second paragraph of Annex A.16.b, point 3, second paragraph, of the application. That mechanism, referred to in footnote 11 to the contested decision, seeks to balance the different exposures of the DSOs to the costs relating to the purchase of energy from RES. In the absence of such a mechanism, the system at issue would have run the risk of creating large regional imbalances which could affect the financial situation of the DSOs, since some regions could have many of the producers concerned, but fewer customers, which could have the result that very significant funds had to be paid to those producers, whereas the revenue from the RES levy would not make it possible to cover those payments. It is apparent in that regard from that annex that the ERO decides on the amounts of the funds collected from the RES levy which have to be transferred mutually between the DSOs.
115 On the other hand, the initial scheme sets out to allocate the total revenue from the RES levy for the financing of that scheme and thereby to prevent a situation where that revenue results in profits or losses for the TSO and DSOs. Indeed, any deficit or surplus resulting from the difference, on an annual basis, between income from the sale of energy from RES and the purchase price of that sale is reflected in the amount of that levy adopted for the following year, as is apparent from footnote 11 to the contested decision and Annex A.16.b to the application. That shows that the initial scheme is not financed by the TSO and the DSOs’ own financial resources.
116 Those mechanisms therefore prove, contrary to what the applicants claim, first, that the funds resulting from the RES levy collected by the TSO and the DSOs are not freely available to them, but are subject to compulsory redistribution, the amounts of which are decided upon by the ERO, and, second, that they remain, as a result, constantly under the control of the ERO. In addition, those funds cannot give rise, in principle, to losses or profits for the TSO and the DSOs, since any deficit or surplus is passed on, by ERO decision, to the amount of that levy for the following year. It follows that the amounts thus received by the TSO and the DSOs result from a parafiscal charge, remain under the control of the ERO and cannot be used for purposes other than those provided by the law.
117 It should, moreover, be borne in mind that, according to the case-law referred to in paragraph 107 above, ‘funds financed through compulsory charges imposed by the legislation of the Member State, managed and apportioned in accordance with the provisions of that legislation, may be regarded as State resources within the meaning of Article 107(1) TFEU even if they are managed by entities separate from the public authorities’, which applies to the present case.
118 The applicants rely, however, on the judgments of 24 January 1978, Van Tiggele (82/77, EU:C:1978:10), of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), and of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), claiming that the initial scheme and those which were the subject of those judgments are similar, and that the Court has held that the latter schemes did not involve State resources.
119 That line of argument cannot succeed. First of all, as regards the judgment of 28 March 2019, Germany v Commission (C‑405/16 P, EU:C:2019:268), relied on by the applicants at the hearing, it must be observed in particular that, unlike in the present case, the German legislative framework establishing the measure at issue in the case giving rise to that judgment did not oblige electricity suppliers to pass on to end customers the amounts paid in respect of the levy for energy generated from RES (paragraph 71 of that judgment). That fact was one of the decisive factors enabling the Court to conclude that the measure at issue in that case did not involve State resources. By contrast, in the present case, the RES levy is mandatory for end customers and thus constitutes, in essence, a parafiscal charge.
120 Next, as regards the case that gave rise to the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), the Court held in that judgment that the obligation imposed on private electricity supply undertakings to purchase electricity generated from RES at fixed minimum prices could not be regarded as an intervention through State resources, in so far as no direct or indirect transfer of State resources to undertakings which produced that type of electricity was brought about by that obligation. As the Court has already had occasion to point out (judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 74), in the case which gave rise to the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), the private undertakings had not been appointed by the Member State concerned to manage a State resource, but were bound by an obligation to purchase by means of their own financial resources.
121 The initial scheme is substantially different in this respect from that at issue in the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160). Indeed, it does not impose an obligation to purchase at a price imposed by the State financed by the TSO and the DSOs’ own resources. By contrast with that case, the scheme in question is financed entirely by the RES levy imposed compulsorily by law on end customers, so that the scheme in question is not financed by the TSO and the DSOs’ own financial resources.
122 Finally, in the judgment of 24 January 1978, Van Tiggele (82/77, EU:C:1978:10), the Court ruled that the determination by the State of minimum retail prices did not constitute State aid. However, as has been pointed out on numerous occasions, the initial scheme is not limited, in the present case, to providing for regulated prices of energy generated from RES.
123 In contrast, the present case is closer to the case that led to the judgment of 17 July 2008, Essent Netwerk Noord and Others C‑206/06, EU:C:2008:413), in which the Court characterized as a ‘charge’ the additional price imposed on electricity purchasers at issue in that case, on the grounds, in particular, that that additional price constituted a charge unilaterally imposed by law, which the customers were required to pay (paragraphs 45, 47 and 66 of that judgment). That is precisely the position in the present case.
124 In addition, in the judgment of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413), the Court found that national rules imposing such a charge, borne by customers, on the price of electricity transmission collected by network operators and transferred to a designated company for that purpose, which, in turn, was responsible for managing and allocating funds, involved State resources within the meaning of Article 107, paragraph 1, TFEU. It is true that the scheme at issue in the case giving rise to that judgment is not identical to the initial scheme at issue in the present case, in so far as the ‘designated company’ was, in the case of the Netherlands scheme, an additional intermediary (in relation to the TSO and the DSOs) centralising the funds collected by the network operator and assigning a part of those funds beyond a certain threshold to the competent ministry (judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 67). However, that difference, and in particular the absence of ‘centralisation’ of the funds collected, emphasised by the applicants, is not sufficient to rule out the relevance of that judgment. It is apparent from paragraphs 72 and 73 of that judgment that the decisive elements of the scheme at issue, in order for the latter to be capable of being categorised by the Court of Justice as a scheme involving State resources, were the fact that the amount received by the ‘designated company’ ‘[had] its origin in a charge and [could] be used for no other purpose than that provided for by the Law’ (paragraph 72) and (ii) the fact that the allocation of the amounts collected to the producers concerned ‘[had been] the subject of a decision by the legislature’ (end of paragraph 73). That is also the case here, as follows from paragraphs 110 to 116 of the present judgment.
125 The applicants further object that the TSO and the DSOs do not have separate accounts specifically dedicated to the management of the special levy, which the Commission also accepts (see paragraphs 73 and 74 of the contested decision and paragraphs 160 and 161 of the defence). However, first, it follows from the case-law (see, to that effect, judgment of 11 December 2014, Austria v Commission, T‑251/11, EU:T:2014:1060, paragraph 71) that this circumstance is only a ‘further’ indication to be taken into account. Second, it is apparent from the contested decision that the TSO and the DSOs are nevertheless subject to an obligation to report the funds paid to the beneficiaries of the aid and the funds collected from end customers by means of the RES levy (footnote 11 to that decision), the Czech Republic stating, in its statement in intervention, that that obligation results from Decrees No 404/2005 and No 408/2009 of the ERO and the annexes thereto.
126 The applicants claim, moreover, that some DSOs are private entities. In that regard, first, while it is true that some DSOs are private entities, the fact remains that the TSO is wholly owned by the State and that the largest of the DSOs, namely ČEZ, is itself predominantly owned by the State and owns in its turn five of the eight initial DSOs. Second, and in any event, as is apparent from the case-law cited in paragraphs 102 and 107 above, the question whether the TSO and the DSOs are bodies governed by public or private law is not in itself decisive. What matters is whether those bodies have been ‘appointed’ or are ‘under a mandate’ from the State to manage aid (see, to that effect, judgment of 19 December 2013, Association Vent de Colère! and Others, C‑262/12, EU:C:2013:851, paragraphs 20 and 30). That is the case here: the TSO and the DSOs are appointed and are under a mandate from the State to manage the collection of the RES levy and the redistribution of the funds accordingly raised under the control of the State. In the light of all of the foregoing, it must be held that the Commission did not err in considering that the initial scheme entailed the use of State resources.
127 Accordingly, the second part of the third plea must also be rejected. Consequently, the third plea must be rejected as unfounded in its entirety.
The fourth plea, alleging overreaching requirements imposed by the Commission in its compatibility assessment of the measures at issue with the internal market
128 The applicants claim that, even assuming that the initial scheme were considered to be State aid within the meaning of Article 107(1) TFEU, the Commission ‘required’ the Czech Republic to introduce a review mechanism going beyond that imposed by the Guidelines applicable to the investments in question carried out between 2008 and 2010, namely the 2008 Guidelines. It follows from paragraph 109(b) of those Guidelines that, in order to determine the amount of operating aid, all investment aid must be deducted from production costs. It was because there was no such provision in the initial scheme that the Commission requested the Czech Republic, in the course of the notification procedure, to put in place a review mechanism. The applicants argue that it is clear from paragraphs 56 and 57 of the contested decision that the mechanism ‘required’ by the Commission is aimed at avoiding overcompensation resulting not only from the combination of investment aid with operating aid, but also from an overestimation of the costs taken into account in calculating the level of the aid in question. That mechanism is, in the applicants’ view, therefore contrary to the 2008 Guidelines and discriminatory against investors, placing the risk associated with increasing costs on them while depriving them of any benefit related to the reduction of those costs. Moreover, they claim that the mechanism in question undermines regulatory stability and frustrates the applicants’ legitimate expectations.
129 The Commission disputes those arguments.
130 It must be stated at the outset that the fourth plea concerns exclusively the lawfulness of the review mechanism.
131 In that regard, it should be noted that the review mechanism was not ‘imposed’ by the Commission, but that the Czech Republic voluntarily undertook to implement it. With regard to such commitments by Member States, which are not imposed by the Commission as a condition of aid compatibility, it is clear from the case-law that the notified measure and the commitments submitted by the Member State are inseparable and that, therefore, it is not open to an applicant to base an application for annulment only on some of the undertakings retranscribed in a decision made on the basis of Article 4(3) of Regulation 659/1999 (see, to that effect, order of 1 December 2015, Banco Espírito Santo v Commission, T‑814/14, not published, EU:T:2015:936, paragraph 32).
132 It follows that the first plea in law is ineffective.
133 For the sake of completeness, the applicants’ argument that the review mechanism is ‘overreaching’ is to be rejected, since it goes beyond the requirements laid down in the 2008 Guidelines. That argument is based on a partial reading of those Guidelines. In that regard, it should be noted that point 107 of those Guidelines states that operating aid for the production of renewable energy may be justified in order to cover the difference between the cost of producing energy generated from RES and the market price of the type of energy in question. That applies to the production of renewable energy for the purposes of subsequently selling it on the market as well as for the purposes of the undertaking’s own consumption. Member States may grant aid for renewable energy sources according to three methods. It is common ground, in the present case, that the Czech Republic put in place the first of those methods, set out in point 109 of those Guidelines. According to point 109(a) of the 2008 Guidelines, Member States may grant operating aid in order to offset the difference between the cost of producing energy from RES, including the depreciation of additional investment for the protection of the environment, and the market price of the type of energy in question. That operating aid may then be granted until the plant has been fully depreciated according to normal accounting rules. Any further energy produced by the plant will not qualify for any assistance. However, the aid may also cover a normal return on capital. According to paragraph 109(b) of the 2008 Guidelines, in order to determine the amount of operating aid, any investment aid paid to the undertaking in question in accordance with subparagraph (a) for the completion of its new installations must be deducted from the production costs. When notifying aid schemes to the Commission, Member States must state the precise support mechanisms and in particular the methods of calculating the amount of aid.
134 Simply reading paragraphs 107 and 109 of the 2008 Guidelines shows that the amount of the operating aid must not lead either to overcompensation resulting from the payment of amounts exceeding the difference between production costs and market price, while taking into account the normal profitability of the installation (paragraph 109(a) of those Guidelines), or overcompensation resulting from the combination of operating aid and investment aid.
135 Lastly, as regards the alleged failure to observe ‘regulatory stability’ and the principle of the protection of legitimate expectations arising from the introduction of such a review mechanism, it should be noted that the applicants cannot base a legitimate expectation on the fact that EU law guarantees them that they will benefit from overcompensation under the aid scheme at issue.
136 The fourth plea must therefore be rejected.
The fifth plea alleging a procedural irregularity
137 The applicants claim that the allegedly incorrect facts stated in the context of the third plea, namely that the TSO and the DSOs were required to impose the RES levy on their customers, constitute a ‘procedural irregularity’. They submit that the contested decision is vitiated by such an irregularity in so far as it was adopted in infringement of the applicants’ right to be heard, guaranteed by the general principles of law and Article 41(2) of the Charter of Fundamental Rights of the European Union. That right relates not only to the possibility of submitting observations, but also to the possibility of having those observations taken into consideration when a decision is adopted. However, according to the applicants, ‘most’ of their arguments and factual observations were disregarded or treated cursorily. In the reply, the applicants state that the Commission did not hear them on aspects of the contested decision which did not fall under the State aid rules.
138 The Commission contends that the plea should be rejected.
139 As regards the first head of claim in the fifth plea, in which the Commission is accused of having erroneously stated the facts, it should be noted, like the Commission, that that issue is the subject of the first part of the third plea (see paragraphs 87 to 95 above). An examination of the latter has shown that the factual error alleged by the applicants had not been established. Moreover, such an error, even if it were proven, cannot constitute a ‘procedural irregularity’. In consequence, that first head of claim must be rejected.
140 As regards the second head of claim in the fifth plea, relating to infringement of the right to be heard, it must be stated that, in the context of the procedure for the review of State aid, the beneficiaries of the aid or the shareholders of such aid, as the applicants are in the present case, cannot rely on actual rights of defence. It should be noted that the procedure for the control of State aid is a procedure initiated with regard to the Member State responsible for granting the aid. That procedure not being initiated against the recipient of the aid, the latter may not rely on the rights of the defence. Interested parties have only the right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case (judgments of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraphs 81 and 83, and of 15 September 2016, FIH Holding and FIH Erhvervsbank v Commission, T‑386/14, EU:T:2016:474, paragraph 99).
141 It has been held that the Charter of Fundamental Rights is not intended to alter the nature of the review of State aid established by the FEU Treaty or to confer on third parties a right of scrutiny which Article 108 TFEU does not provide (judgment of 13 December 2018, Transavia Airlines v Commission, T‑591/15, EU:T:2018:946, paragraph 50).
142 That being said, first, it must be stated, in the present case, that the applicants’ arguments have been clearly and correctly summarised in paragraph 7 of the contested decision and that, in that decision, the Commission replied to all those arguments.
143 Secondly, it is clear that the applicants merely claim that the Commission did not respond to ‘most’ of their arguments, without, however, specifying which arguments precisely the Commission failed to take into account or merely ‘superficially’ examined.
144 Thirdly, as regards the more specific criticism, albeit put forward for the first time in the reply, that the Commission did not hear the applicants ‘about the non State aid aspects which it … “assessed” in the contested decision’ (paragraph 116 in fine of the reply), it is appropriate to point out, without there being any need to rule on its admissibility, that it has no factual basis. As the Commission rightly points out, in paragraph 5 of the contested decision, headed ‘Assessment of submissions from third parties’, it takes into account the arguments of the third parties, including the applicants, on a number of matters and submits its analysis in that regard. It follows that, in that paragraph, the Commission merely responds to the arguments raised during the administrative procedure, so that the applicants cannot validly claim that there has been an infringement of their right to be heard.
145 That is therefore sufficient to reject as unfounded the second head of claim in the fifth plea, alleging infringement of the right to be heard, and, accordingly, that plea in its entirety.
The sixth plea alleging that the Commission infringed Article 5(1) TEU
146 According to the applicants, the contested decision contains several passages, in particular in paragraph 133 et seq., in which the Commission goes beyond the scope of the State aid rules and gives a decision on the rights of the applicants outside of those rules, in particular by stating, first, that the arbitration procedure between investors and the Czech Republic is contrary to EU law; second, that those investors are not entitled to rely on the ECT or on the German/Czech BIT; (iii) that the Czech Republic has not infringed the principle of the protection of legitimate expectations under national law or EU law; and (iv) that any compensation awarded by an arbitration court would infringe Article 108 TFEU and cannot therefore be enforced.
147 The applicants state that the first and second assertions, summarised in paragraph 146 above, are irrelevant in the present case and are not therefore the subject of the present action, but that, by contrast, the third and fourth assertions are disputed.
148 According to the applicants, the third and fourth assertions summarised in paragraph 146 above are incorrect and lacking any foundation in fact and law. They also show that the Commission infringed its competencies, such findings being neither necessary nor useful for the application of the State aid rules, which moreover infringes Article 5 TEU and constitutes an ‘abuse of power’.
149 Furthermore, by ruling on the conduct of the Czech Republic, the Commission also exceeded its competence, since the present case does not concern the conduct of that State in the light of the principle of the protection of legitimate expectations.
150 The Commission, supported by the Kingdom of Spain, the Republic of Cyprus and the Slovak Republic, contests the applicants’ arguments.
151 The Court must adhere to the form of order sought by the applicants in the context of the sixth plea and, consequently, to review the legality of the Commission’s third and fourth ‘assertions’, summarised in paragraph 146 above, namely that the Czech Republic did not infringe the principle of the protection of legitimate expectations by virtue of national or EU law and that any compensation granted by an arbitration court would constitute State aid in itself, would infringe Article 108 TFEU and would not be enforceable.
152 In that regard, it must be borne in mind that the Commission, as guardian of the Treaties, is undoubtedly within its role and within the limits of its powers where, ruling in a particular field of EU law, in the present case the examination of measures capable of constituting State aid, it concludes to the incompatibility of certain aspects of those measures (or other related or envisaged measures) with provisions of EU law other than those governing the matter before it. Indeed, it follows from the general scheme of the Treaty that the procedure at issue must never produce a result which is contrary to the specific provisions of the Treaty (see, to that effect, judgment of 15 June 1993, Matra v Commission, C‑225/91, EU:C:1993:239, paragraphs 41 and 42 and the case-law cited).
153 It is in the light of the case-law cited in paragraph 152 above that it is necessary to examine whether the Commission infringed Article 5 TEU by setting out the third and fourth assertions summarised in paragraph 146 above.
154 As regards, first, the applicants’ argument that the Commission did not have the power to rule on the observance of the principle of the protection of legitimate expectations by the Czech Republic, it must be stated that, in paragraph 134 of the contested decision, the Commission noted that the measures which are the subject of its examination were the implementation of the obligations of that Member State under EU law, in particular Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity generated from renewable energy sources in the internal electricity market (OJ 2001 L 283, p. 33) and of Directive 2009/28, and that, consequently, the general principles of EU law applied to the measures examined.
155 In paragraph 135 of the contested decision, the Commission observed that, according to the case-law, traders are not protected against future changes to an ongoing situation, and the immediate application of the new rule of law is the general rule for the application in time of new rules. In accordance with those principles, it took the view, like the Ústavní soud (Constitutional Court, Czech Republic), that the amended scheme was not retroactive and did not infringe the principle of the protection of legitimate expectations. In its view, that is all the more true since the initial scheme did not guarantee a certain purchase price or green premium, but only a simple return on the investment over a period of 15 years. Consequently, the levy on producers of photovoltaic energy has been calculated so as to ensure such simple return on investment and nothing more.
156 In paragraph 149 of the contested decision, the Commission added that the Czech Republic had not infringed the principles of the protection of legitimate expectations and equal treatment either under national law or under EU law. In its view, since EU law is a component of the law applicable under both the ECT and the German-Czech Treaty on bilateral investments, the principle of the protection of legitimate expectations, in accordance with the condition relating to fair and equitable treatment in those Treaties, must be interpreted in conformity with the content of that principle as it exists in EU law.
157 It follows that, in paragraphs 134, 135 and 149 of the contested decision, the Commission examined whether the Czech Republic, by granting the State aid in question and acting in that manner within the scope of EU law, had complied with the general principles of that law, including the principle of the protection of legitimate expectations. In accordance with the case-law cited in paragraph 152 above, the Commission is acting within the limits of its powers where, ruling in the field of State aid, it examines whether the measures at issue comply with other provisions of EU law than those governing the matter before it. Indeed, the Commission cannot authorise a measure which is contrary to the specific provisions of the Treaty and the general principles of EU law. It follows that, in examining whether the Czech Republic had infringed the principle of the protection of legitimate expectations established in EU law, when it granted the aid at issue, the Commission did not infringe Article 5 TEU.
158 It is true that, in paragraph 149 of the contested decision, the Commission stated that the Czech Republic has not infringed the principle of the protection of legitimate expectations, either in accordance with EU law or ‘under domestic law’. Although it is clear that the Commission does not have competence to rule on whether a Member State has complied with its domestic law, the fact remains that that assertion is included purely for the sake of completeness of that decision, and cannot therefore entail the annulment of that decision; consequently, the applicants’ complaint on that point must be rejected as ineffective.
159 As regards, secondly, the argument that the Commission did not have the power to find, in paragraph 150 of the contested decision, that any compensation granted by an arbitral court in the context of a dispute internal to the European Union between an investor of a Member State and another Member State would constitute State aid in itself, would infringe Article 108(3) TFEU and would not be enforceable, it is sufficient to observe, in that regard, that that is also a ground that was included in the decision purely for the sake of completeness. Indeed, that paragraph refers, by definition, to a hypothetical situation and therefore is not part of the necessary reasons for that decision, so that it is irrelevant, in any case, to the legality of the decision (see, to that effect, order of 9 December 2009, Marcuccio v Commission, C‑528/08 P, EU:C:2009:761, paragraph 51, and judgment of 16 September 2013, De Nicola v EIB, T‑264/11 P, EU:T:2013:461, paragraph 66). Therefore, that argument must be rejected as irrelevant.
160 As regards, thirdly, the applicants’ argument that the third and fourth assertions summarised in paragraph 146 above constitute an abuse of power, it must be borne in mind that, according to settled case-law, a decision is vitiated by misuse of power or of procedure only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for purposes other than those stated (judgments of 12 November 1996, United Kingdom v Council, C‑84/94, EU:C:1996:431, paragraph 69, and of 16 September 1998, IECC v Commission, T‑133/95 and T‑204/95, EU:T:1998:215, paragraph 188). In addition, where more than one aim is pursued, even if the grounds of a decision include, in addition to proper grounds, an improper one, that would not make the decision invalid for misuse of powers, since it does not nullify the main aim (see judgment of 21 September 2005, EDP v Commission, T‑87/05, EU:T:2005:333, paragraph 87 and the case-law cited).
161 In the present case, even if some of the passages in the contested decision were set out to shed light on the discussions held in the context of arbitration procedures which have arisen or are to come, that cannot have any effect on the legality of that decision, since there is no evidence that the decision has not been adopted for the purposes of the application of the State aid rules to the scheme at issue or, in any event, in particular for such a purpose.
162 As regards, fourthly and lastly, the applicants’ argument that the third and fourth assertions summarised in paragraph 146 above ‘not only lack a legal and factual basis and are wrong’ (paragraph 174 of the application), it must be stated, as the Commission has done, that, in support of the present plea, the applicants have put forward no argument to show the existence of errors of fact or errors of law other than those examined above.
163 The sixth plea must therefore be rejected.
The seventh plea, alleging that the contested decision is vitiated by manifest errors of assessment
164 According to the applicants, the first to sixth pleas in law show that the Commission committed manifest errors of assessment. It did not deal impartially with the case, but rather drafted the contested decision in order to reach the conclusion that the initial scheme constituted State aid. In particular, it did not carry out a detailed analysis of that case, which is clear from paragraph 71 et seq. of that decision.
165 The Commission takes the view that the seventh plea is inadmissible as being contrary to the requirements of Article 76 of the Rules of Procedure.
166 The seventh plea in law must indeed be rejected as inadmissible, pursuant to Article 76 of the Rules of Procedure. First, a plea submitted as a mere summary of the six preceding pleas is not independent and must, for that reason alone, be rejected. Second, it should be pointed out that the assertions contained therein, in particular those alleging lack of impartiality, are extremely summary and in no way substantiated.
167 It follows from all the foregoing that the action must be dismissed.
The requests for measures of organisation of procedure and inquiry
168 Both the applicants and the Commission have requested the General Court to order various measures of organisation of procedure and inquiry. The applicants have requested the examination of a number of witnesses and the production of the Commission’s files relating to the Commission’s proceedings referred to in paragraphs 52 to 95 of the application or, at the very least, its correspondence and notes relating to the meetings held with the Czech Republic and with third parties. The Commission has requested the production of the pleadings submitted by the applicants concerned in the context of the arbitration procedures in relation to investment and the communication in its entirety of an arbitral award to which the applicants referred.
169 In that regard, it is for the Court to appraise whether measures of organisation of procedure and measures of inquiry are appropriate (see, to that effect, judgment of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 417 and the case-law cited). In particular, the Court is the sole judge of any need to supplement the information available to it concerning the cases before it (see judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 77 and the case-law cited).
170 Accordingly, it falls to the General Court to assess the relevance of the application to the subject matter of the dispute and the need to examine the witnesses named (see judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 78 and the case-law cited).
171 With regard, first, to the Commission’s request for disclosure in its entirety of an arbitral award on 26 October 2018 (see paragraph 31 above), it should be noted that it has become moot, since that award was added to the file by the applicants on 18 January 2019 (see paragraph 33 above).
172 As regards, next, the request for the production of other documents and the examination of witnesses, it should be noted that the information contained in the documents before the Court and the explanations given at the hearing are sufficient to enable the Court to give a ruling, as it was able to adjudicate on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings and in the light of the documents lodged by the parties.
173 It follows that the applications for measures of organisation of procedure and inquiry must be rejected.
174 The action must therefore be dismissed in its entirety without there being any need to rule on its admissibility.
Costs
175 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
176 Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay the costs incurred by the Commission, in accordance with the form of order sought by the Commission.
177 The Czech Republic, the Republic of Spain, the Republic of Cyprus and the Slovak Republic must bear their own costs pursuant to Article 138(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders FVE Holýšov I s. r. o. and the other applicants whose names are included in the annex to bear their own costs and to pay those incurred by the European Commission;
3. Orders the Czech Republic, the Republic of Spain, the Republic of Cyprus and the Slovak Republic to bear their own costs.
Tomljenović | Bieliūnas | Kornezov |
Delivered in open court in Luxembourg on 20 September 2019.