Action brought on 13 May 2019 – Achema and Lifosa v Commission

(Case T-300/19)

Language of the case: English


Applicants: Achema AB (Jonava, Lithuania) and Lifosa AB (Kedainiai, Lithuania) (represented by: E. Righini and N. Solárová, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

annul Commission decision C(2018) 9209 final of 8 January 2019 in State aid case SA.45765 (2018/NN) – Lithuania – Support to power plants producing electricity from renewable energy sources;

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on a single plea in law, alleging that the Commission failed to initiate a formal investigation procedure, thereby depriving the applicants of the procedural rights provided for by Article 108(2) TFEU.

The applicants maintain that all the evidence indicates that the Commission should have had doubts about the compatibility of the State aid and its financing method with the internal market and EU law. Therefore, it should have opened a formal investigation.

The applicants refer to an ample body of evidence ranging from the length of the pre-notification phase and the disproportionate time allocation between that phase and the preliminary examination procedure, other circumstances under which the contested decision was adopted and the alleged flaws reflected in the content of that decision, which, they argue, is insufficiently reasoned and vitiated by serious errors of assessment or the lack of assessment. These factors are said to show that the Commission made an insufficient analysis of the relevant aspects and did not have all the information needed before declaring the State aid and its financing method compatible with the internal market and EU law.

In particular, it is alleged that (i) the Commission erred in its assessment of an allegedly stand-alone Renewable Energy Sources (RES) scheme and RES levy, while misinterpreting the Lithuanian legislative framework and the applicants’ complaints; (ii) the Commission failed to assess investment aid granted to RES generators and therefore its substantive analysis is incomplete and insufficient; (iii) the Commission erred in its assessment of the exemptions from the levy under Article 107(1) TFEU; (iv) the Commission’s assessment of the compatibility of the RES scheme with the internal market was inadequate and erroneous; and (v) the assessment of the financing method’s compliance with EU law is flawed and insufficient.