Action brought on 28 May 2018 — Gas Natural v Commission

(Case T-328/18)

Language of the case: Spanish

Parties

Applicant: Gas Natural SDG, SA (Madrid, Spain) (represented by: F. González Díaz and V. Romero Algarra, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

Declare admissible and well founded the grounds of annulment set out in this action.

In accordance with Article 263 TFEU, annul the Commission Decision of 27 November 2017 in file SA.47912 (2017/NN) opening the formal investigation procedure provided for in Article 108(2) TFEU relating to the environmental investment incentive granted by the Kingdom of Spain to coal-fired power stations.

Order the Commission to pay the costs.

Pleas in law and main arguments

The contested decision in this case opened the formal investigation procedure, provided for in Article 108(2) TFEU, relating to the environmental investment incentive granted by the Kingdom of Spain to coal-fired power stations.

According to the applicant, it is apparent from the contested decision that the Commission harbours doubts as to whether the emission limit values imposed on plants that receive that environmental investment incentive are simply aimed at applying the protection levels required by EU law and, in particular, by Directive 2001/80/EC, which applies to coal-fired power stations. If that were the case, the environmental investment incentive would not provide any incentive at all. Furthermore, the environmental investment incentive would be contrary to the principle of EU law regarding State aid, according to which Member States cannot grant public aid to undertakings so that the latter can comply with binding EU laws.

In support of its action, the applicant relies on two pleas in law.

1.    First plea in law, alleging infringement of the obligation to state reasons as regards the selective nature of the measure.

In that regard, it is submitted that the Commission provides no information that explains in a clear and unequivocal manner why the measure under investigation is selective in nature, for the purposes of Article 107(1) TFEU. In particular, the Commission fails to explain whether the coal-fired power stations are in a comparable factual and legal situation with the rest of the power stations and, if that is the case, whether the incentive in this case can favour ‘certain undertakings or productions’, for the purposes of Article 107(1) TFEU, in relation to other undertakings which are in a comparable factual and legal situation, in light of the objective pursued by the measure in question.

2.    Second plea in law, alleging, in the alternative, infringement of Article 107(1) TFEU, in relation to the selectivity of the measure.

In that regard, it is submitted that the payment granted to the coal-fired power stations in order to continue supporting the investments cannot in any way be selective in nature given that the payment in question is limited to putting all post-1998 significant investments on an equal footing, irrespective of the technology and/or the fact that the power stations in question are CCGTs or coal-fired power stations, thus altering the amount of the payment according to its significance.

In any event, and even assuming that the Commission’s conclusions in the contested decision are correct, quod non, the applicant submits that, in light of their economic circumstances and their legal situation, the coal-fired power stations were not in a factual and legal situation that was comparable with that of power stations which use a different type of energy. Coal-fired power stations were the only ones established prior to 1998 which were obliged to make very significant investments in order to continue operating and which, without the payment in question, would have been forced to close, putting at risk the security of supply of the Spanish electricity system.

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