# C_2021242EN.01000402.xml

| 21.6.2021 | EN | Official Journal of the European Union | C 242/4 |
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21.6.2021

EN

Official Journal of the European Union

C 242/4

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Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Latvia) lodged on 9 March 2021 — SIA ‘Ogres HES’ v Sabiedrisko pakalpojumu regulēšanas komisija, Ekonomikas ministrija, Finanšu ministrija

(Case C-152/21)

(2021/C 242/07)

Language of the case: Latvian

Referring court

Augstākā tiesa (Senāts)

Parties to the main proceedings

Applicant at first instance and cross-appellant: SIA ‘Ogres HES’

Defendant at first instance and appellant: Sabiedrisko pakalpojumu regulēšanas komisija

Other parties to the proceedings: Ekonomikas ministrija, Finanšu ministrija

Questions referred

| 1. | Must the obligation imposed on the public operator to purchase electricity at a price higher than the market price from producers who use renewable energy sources to generate electricity, relying on the obligation imposed on the end consumer to pay in proportion to use, be deemed to constitute intervention by the State or through State resources for the purposes of Article 107(1) of the Treaty on the Functioning of the European Union? |
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1.

Must the obligation imposed on the public operator to purchase electricity at a price higher than the market price from producers who use renewable energy sources to generate electricity, relying on the obligation imposed on the end consumer to pay in proportion to use, be deemed to constitute intervention by the State or through State resources for the purposes of Article 107(1) of the Treaty on the Functioning of the European Union?

| 2. | Is the concept of ‘liberalisation of the market in electricity’ to be interpreted as meaning that liberalisation must be deemed to have already occurred where certain aspects of free trade exist, such as, for example, contracts concluded by a public operator with suppliers from other Member States? Can liberalisation of the market in electricity be deemed to begin when the law grants some electricity users (for example, electricity users connected to the transport network or non-domestic electricity users connected to the distribution network) the right to change electricity distributor? What effect do developments in the regulation of the electricity market in Latvia have on the assessment of aid granted to electricity producers in the light of Article 107(1) of the Treaty on the Functioning of the European Union (for the purposes of the answer to question 1, in particular, the situation prior to 2007? |
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2.

Is the concept of ‘liberalisation of the market in electricity’ to be interpreted as meaning that liberalisation must be deemed to have already occurred where certain aspects of free trade exist, such as, for example, contracts concluded by a public operator with suppliers from other Member States? Can liberalisation of the market in electricity be deemed to begin when the law grants some electricity users (for example, electricity users connected to the transport network or non-domestic electricity users connected to the distribution network) the right to change electricity distributor? What effect do developments in the regulation of the electricity market in Latvia have on the assessment of aid granted to electricity producers in the light of Article 107(1) of the Treaty on the Functioning of the European Union (for the purposes of the answer to question 1, in particular, the situation prior to 2007?

| 3. | If the answers to questions 1 and 2 make clear that the aid granted to electricity producers does not constitute State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union, do the facts that the applicant now operates in a liberalised electricity market and that the payment of compensation would now afford it an advantage over other operators present on the market concerned mean that compensation for the loss must be treated as State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union? |
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3.

If the answers to questions 1 and 2 make clear that the aid granted to electricity producers does not constitute State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union, do the facts that the applicant now operates in a liberalised electricity market and that the payment of compensation would now afford it an advantage over other operators present on the market concerned mean that compensation for the loss must be treated as State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union?

| 4. | If the answers to questions 1 and 2 make clear that the aid granted to electricity producers is State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union, must it be considered, in the context of the supervision of State aid provided for in that provision, that the applicant’s claim for compensation for the loss sustained due to failure fully to respect the statutory right to receive a higher payment for electricity generated constitutes a request for new State aid or a request for payment of the portion of State aid not previously received? |
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4.

If the answers to questions 1 and 2 make clear that the aid granted to electricity producers is State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union, must it be considered, in the context of the supervision of State aid provided for in that provision, that the applicant’s claim for compensation for the loss sustained due to failure fully to respect the statutory right to receive a higher payment for electricity generated constitutes a request for new State aid or a request for payment of the portion of State aid not previously received?

| 5. | If question 4 is answered to the effect that the claim for compensation must be assessed, in the context of past circumstances, as a request for payment of the portion of State aid not previously received, does if follow from Article 107(1) of the Treaty on the Functioning of the European Union that, at the present time, in order to adjudicate on the payment of that State aid, it is necessary to examine the current market situation and to take account of the legislation in force (including the limitations currently in existence to prevent overcompensation)? |
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5.

If question 4 is answered to the effect that the claim for compensation must be assessed, in the context of past circumstances, as a request for payment of the portion of State aid not previously received, does if follow from Article 107(1) of the Treaty on the Functioning of the European Union that, at the present time, in order to adjudicate on the payment of that State aid, it is necessary to examine the current market situation and to take account of the legislation in force (including the limitations currently in existence to prevent overcompensation)?

| 6. | Is it significant, for the purposes of the interpretation of Article 107(1) of the Treaty on the Functioning of the European Union, that wind power plants, unlike hydroelectric power plants, have benefitted in the past from the full amount of aid? |
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6.

Is it significant, for the purposes of the interpretation of Article 107(1) of the Treaty on the Functioning of the European Union, that wind power plants, unlike hydroelectric power plants, have benefitted in the past from the full amount of aid?

| 7. | Is it significant, for the purposes of the interpretation of Article 107(1) of the Treaty on the Functioning of the European Union, that only some of the hydroelectric power plants which have not received the full amount of aid should now receive compensation? |
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7.

Is it significant, for the purposes of the interpretation of Article 107(1) of the Treaty on the Functioning of the European Union, that only some of the hydroelectric power plants which have not received the full amount of aid should now receive compensation?

| 8. | Must Article 3(2) and Article 7(1) of Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid (1) be interpreted as meaning that, since the amount of the aid at issue in the present case does not exceed the threshold for de minimis aid, that aid should be considered to fulfil the criteria laid down for de minimis aid? Must Article 5(2) of Regulation No 1407/2013 be interpreted as meaning that, in the present case, in view of the conditions for preventing overcompensation set out in Commission Decision SA.43140, the treatment of the payment of damages as de minimis aid is liable to create unacceptable cumulation? |
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8.

Must Article 3(2) and Article 7(1) of Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid (1) be interpreted as meaning that, since the amount of the aid at issue in the present case does not exceed the threshold for de minimis aid, that aid should be considered to fulfil the criteria laid down for de minimis aid? Must Article 5(2) of Regulation No 1407/2013 be interpreted as meaning that, in the present case, in view of the conditions for preventing overcompensation set out in Commission Decision SA.43140, the treatment of the payment of damages as de minimis aid is liable to create unacceptable cumulation?

| 9. | If the view is taken in the present case that State aid was granted/paid, must Article 1(b) and (c) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (2) be interpreted as meaning that circumstances such as those of the present case amount to new State aid and not to existing State aid? |
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9.

If the view is taken in the present case that State aid was granted/paid, must Article 1(b) and (c) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (2) be interpreted as meaning that circumstances such as those of the present case amount to new State aid and not to existing State aid?

| 10. | If question 9 is answered in the affirmative, in order to assess whether the applicant’s situation matches that of aid which is deemed to be existing aid, as referred to in Article 1(b)(iv) of Regulation 2015/1589, must account be taken solely of the date on which the aid was effectively paid as the starting point of the limitation period for the purposes of Article 17(2) of Regulation 2015/1589? |
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10.

If question 9 is answered in the affirmative, in order to assess whether the applicant’s situation matches that of aid which is deemed to be existing aid, as referred to in Article 1(b)(iv) of Regulation 2015/1589, must account be taken solely of the date on which the aid was effectively paid as the starting point of the limitation period for the purposes of Article 17(2) of Regulation 2015/1589?

| 11. | If it is considered that State aid has been granted/paid, must Article 108(3) of the Treaty on the Functioning of the European Union and Articles 2(1) and (3) of Regulation 2015/1589 be interpreted as meaning that a procedure to notify State aid such as that at issue in the present case is deemed to be appropriate where the national court upholds the claim for compensation for the loss sustained on condition that a decision has been received from the Commission which approves the aid and directs the Ministry of the Economy to forward to the Commission, within two months of delivery of the judgment, the relevant declaration of aid for the business activity? |
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11.

If it is considered that State aid has been granted/paid, must Article 108(3) of the Treaty on the Functioning of the European Union and Articles 2(1) and (3) of Regulation 2015/1589 be interpreted as meaning that a procedure to notify State aid such as that at issue in the present case is deemed to be appropriate where the national court upholds the claim for compensation for the loss sustained on condition that a decision has been received from the Commission which approves the aid and directs the Ministry of the Economy to forward to the Commission, within two months of delivery of the judgment, the relevant declaration of aid for the business activity?

| 12. | Is it significant, for the purpose of interpreting Article 107(1) of the Treaty on the Functioning of the European Union, that compensation for the loss sustained is claimed from a public sector body (Public Services Regulatory Commission) which, historically, has not had to bear such costs, and also that that body’s budget is made up of State charges paid by public service providers belonging to regulated sectors; charges which must be ringfenced for regulatory activity? |
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12.

Is it significant, for the purpose of interpreting Article 107(1) of the Treaty on the Functioning of the European Union, that compensation for the loss sustained is claimed from a public sector body (Public Services Regulatory Commission) which, historically, has not had to bear such costs, and also that that body’s budget is made up of State charges paid by public service providers belonging to regulated sectors; charges which must be ringfenced for regulatory activity?

| 13. | Is a compensation scheme such as that at issue in the present case compatible with the principles in EU law and applicable to regulated sectors, in particular Article 12 and recital 30 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), (3) as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009? (4) |
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13.

Is a compensation scheme such as that at issue in the present case compatible with the principles in EU law and applicable to regulated sectors, in particular Article 12 and recital 30 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), (3) as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009? (4)

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(1)  OJ 2013 L 352, p. 1.

(2)  OJ 2015 L 248, p. 9.

(3)  OJ 2002 L 108, p. 21, Special edition in Latvian: Chapter 13 Volume 029 P. 337.

(4)  Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services (OJ 2009 L 337, p. 37).

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