# C_2015337EN.01002201.xml

| 12.10.2015 | EN | Official Journal of the European Union | C 337/22 |
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12.10.2015

EN

Official Journal of the European Union

C 337/22

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Action brought on 15 July 2015 — Greenpeace Energy and Others v Commission

(Case T-382/15)

(2015/C 337/23)

Language of the case: German

Parties

Parties

Applicants: Greenpeace Energy eG (Hamburg, Germany), oekostrom AG für Energieerzeugung und -handel (Vienna, Austria), Stadtwerke Aalen GmbH (Aalen, Germany), Stadtwerke Bietigheim-Bissingen GmbH (Bietigheim-Bissingen, Germany), Stadtwerke Schwäbisch Hall GmbH (Schwäbisch Hall, Germany), Stadtwerke Tübingen GmbH (Tübingen, Germany), Stadtwerke Mühlacker GmbH (Mühlacker, Germany), Energieversorgung Filstal GmbH & Co KG (Göppingen, Germany), Stadtwerke Mainz AG (Mainz, Germany), Stadtwerke Bochum Holding GmbH (Bochum, Germany) (represented by: D. Fouquet and J. Nysten, lawyers)

Applicants:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicants claim that the Court should:

| — | declare the action under paragraphs 4 and 1 of Article 263 TFEU to be admissible and well founded; |
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declare the action under paragraphs 4 and 1 of Article 263 TFEU to be admissible and well founded;

| — | annul Commission Decision (EU) 2015/658 of 8 October 2014 on the aid measure SA.34947 (2013/C) (ex 2013/N) which the United Kingdom is planning to implement for support to the Hinkley Point C nuclear power station; |
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annul Commission Decision (EU) 2015/658 of 8 October 2014 on the aid measure SA.34947 (2013/C) (ex 2013/N) which the United Kingdom is planning to implement for support to the Hinkley Point C nuclear power station;

| — | order the defendant to pay the entire costs of the proceedings, including legal and travel costs. |
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order the defendant to pay the entire costs of the proceedings, including legal and travel costs.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the action, the applicants rely on eight pleas in law.

| 1. | First plea in law: Incorrect application of Article 107(3)(c) TFEU, owing to the acceptance of a common interest
  The applicants assert that, in the context of its examination, the Commission mixes the criteria which must be observed pursuant to Article 107(3)(b) and Article 107(3)(c) TFEU and thereby incorrectly applies those provisions. In addition, the Commission finds a common interest in the support for nuclear energy, which does not exist in those circumstances. The Commission also accepts a common interest in the security of supply, which admittedly constitutes one of the objectives of the European Union in the field of energy, in accordance with Article 194 TFEU, but which cannot be met by the construction and operation of the nuclear power station concerned. |
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1.

First plea in law: Incorrect application of Article 107(3)(c) TFEU, owing to the acceptance of a common interest

The applicants assert that, in the context of its examination, the Commission mixes the criteria which must be observed pursuant to Article 107(3)(b) and Article 107(3)(c) TFEU and thereby incorrectly applies those provisions. In addition, the Commission finds a common interest in the support for nuclear energy, which does not exist in those circumstances. The Commission also accepts a common interest in the security of supply, which admittedly constitutes one of the objectives of the European Union in the field of energy, in accordance with Article 194 TFEU, but which cannot be met by the construction and operation of the nuclear power station concerned.

| 2. | Second plea in law: Incorrect application of Article 107(3)(c) TFEU, owing to the acceptance of a market failure
  In that regard, it is claimed that the Commission wrongly finds the existence of a market failure resulting from the alleged impossibility of financing the nuclear power station on the financial markets and, in so doing, it also neglects the fact that other nuclear power stations, including those using the same technology, manage without comparable State aid. The applicants submit that the Commission also wrongly claims that a political decision may constitute a market failure. |
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Second plea in law: Incorrect application of Article 107(3)(c) TFEU, owing to the acceptance of a market failure

In that regard, it is claimed that the Commission wrongly finds the existence of a market failure resulting from the alleged impossibility of financing the nuclear power station on the financial markets and, in so doing, it also neglects the fact that other nuclear power stations, including those using the same technology, manage without comparable State aid. The applicants submit that the Commission also wrongly claims that a political decision may constitute a market failure.

| 3. | Third plea in law: Incorrect application of Article 107(3)(c) TFEU, owing to the incorrect categorisation of the notified measure ‘Contract for Difference’ as investment aid — Application of a wrong standard of review
  In the context of the third plea in law, the applicants submit that both operating aid and investment aid as well as the difference between those two instruments are defined sufficiently clearly from a legal point of view. In the applicants’ view, the Commission misuses its powers by asserting the equivalence to investment aid and thus creating a new category, and it consequently applies a wrong standard of review. |
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3.

Third plea in law: Incorrect application of Article 107(3)(c) TFEU, owing to the incorrect categorisation of the notified measure ‘Contract for Difference’ as investment aid — Application of a wrong standard of review

In the context of the third plea in law, the applicants submit that both operating aid and investment aid as well as the difference between those two instruments are defined sufficiently clearly from a legal point of view. In the applicants’ view, the Commission misuses its powers by asserting the equivalence to investment aid and thus creating a new category, and it consequently applies a wrong standard of review.

| 4. | Fourth plea in law: Incorrect application of Article 107(3)(c) TFEU, owing to the acceptance of the appropriateness and incentive effect of the aid package
  The applicants submit in that regard that the Commission did not adequately examine the alternatives to the construction and operation of the nuclear power station with regard to the alleged objective of security of supply. In addition, the Commission examines, in a negligent manner, the question of how an undertaking would have acted without aid. Consequently, the Commission carries out an incorrect and incomplete examination of the appropriateness of the aid package. |
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4.

Fourth plea in law: Incorrect application of Article 107(3)(c) TFEU, owing to the acceptance of the appropriateness and incentive effect of the aid package

The applicants submit in that regard that the Commission did not adequately examine the alternatives to the construction and operation of the nuclear power station with regard to the alleged objective of security of supply. In addition, the Commission examines, in a negligent manner, the question of how an undertaking would have acted without aid. Consequently, the Commission carries out an incorrect and incomplete examination of the appropriateness of the aid package.

| 5. | Fifth plea in law: Incorrect application of Article 107(3)(c) TFEU, owing to the underestimation of the distortions to competition caused by the aid measure and the overestimation of the positive effects of the aid package
  Furthermore, the applicants complain that the Commission wrongly concludes that the distortions to competition must be neglected. The applicants submit that expert opinions demonstrate a more pronounced effect on market prices than what the Commission assumes, with the result that a neglect or misinterpretation of the information should be assumed. |
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Fifth plea in law: Incorrect application of Article 107(3)(c) TFEU, owing to the underestimation of the distortions to competition caused by the aid measure and the overestimation of the positive effects of the aid package

Furthermore, the applicants complain that the Commission wrongly concludes that the distortions to competition must be neglected. The applicants submit that expert opinions demonstrate a more pronounced effect on market prices than what the Commission assumes, with the result that a neglect or misinterpretation of the information should be assumed.

| 6. | Sixth plea in law: Infringement of Article 8 of Directive 2009/72/EC (1) or infringement of Directive 2004/17/EC (2) and Directive 2004/18/EC (3), owing to the approval of the aid package without a call for tenders or an equivalent procedure
  In that regard, it is claimed, in particular, that the Commission erroneously assumed the non-applicability of the rules on public procurement in the present case, contrary to its previous decision-making practice. Its assessment of the facts is thus incorrect, vitiated by misuse of powers, and disregards the similarity with numerous other projects. The Commission also misuses its powers when it equates the United Kingdom Government’s call for expressions of interest with a procedure equivalent to a call for tenders. |
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6.

Sixth plea in law: Infringement of Article 8 of Directive 2009/72/EC (1) or infringement of Directive 2004/17/EC (2) and Directive 2004/18/EC (3), owing to the approval of the aid package without a call for tenders or an equivalent procedure

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In that regard, it is claimed, in particular, that the Commission erroneously assumed the non-applicability of the rules on public procurement in the present case, contrary to its previous decision-making practice. Its assessment of the facts is thus incorrect, vitiated by misuse of powers, and disregards the similarity with numerous other projects. The Commission also misuses its powers when it equates the United Kingdom Government’s call for expressions of interest with a procedure equivalent to a call for tenders.

| 7. | Seventh plea in law: Infringement of the enhanced requirements associated with the obligation to state reasons and infringement of the Code of Good Administrative Behaviour, owing to the lack of justification for the inconsistent action of the Commission
  Within the context of this plea, the applicants assert, in essence, that the Commission contradicts on several occasions its own decision-making practice, without giving convincing reasons for doing so. |
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7.

Seventh plea in law: Infringement of the enhanced requirements associated with the obligation to state reasons and infringement of the Code of Good Administrative Behaviour, owing to the lack of justification for the inconsistent action of the Commission

Within the context of this plea, the applicants assert, in essence, that the Commission contradicts on several occasions its own decision-making practice, without giving convincing reasons for doing so.

| 8. | Eighth plea in law: Infringement of the second paragraph of Article 296 TFEU, Article 41 of the Charter of Fundamental Rights of the European Union and the Code of Good Administrative Behaviour, owing to the general failure to comply with the obligation to state reasons
  In that regard, the applicants complain that the Commission incorrectly describes the methodology of the aid measures, for example by assuming an investment aid rather than an operating aid and by generally mixing the various elements. Furthermore, the Commission does not determine the total amount of the aid measures and does not sufficiently assess a possible accumulation. The applicants take the view that the reasons given for the acceptance of a common interest or of a market failure and the appropriateness of the aid package do not generally satisfy the requirements as to the statement of reasons. |
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8.

Eighth plea in law: Infringement of the second paragraph of Article 296 TFEU, Article 41 of the Charter of Fundamental Rights of the European Union and the Code of Good Administrative Behaviour, owing to the general failure to comply with the obligation to state reasons

In that regard, the applicants complain that the Commission incorrectly describes the methodology of the aid measures, for example by assuming an investment aid rather than an operating aid and by generally mixing the various elements. Furthermore, the Commission does not determine the total amount of the aid measures and does not sufficiently assess a possible accumulation. The applicants take the view that the reasons given for the acceptance of a common interest or of a market failure and the appropriateness of the aid package do not generally satisfy the requirements as to the statement of reasons.

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(1)  Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55).

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(2)  Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).

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(3)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

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