# C_2022119EN.01002802.xml

| 14.3.2022 | EN | Official Journal of the European Union | C 119/28 |
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14.3.2022

EN

Official Journal of the European Union

C 119/28

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Request for a preliminary ruling from the Tallinna Halduskohus (Estonia) lodged on 5 January 2022 — Est Wind Power OÜ v AS Elering

(Case C-11/22)

(2022/C 119/37)

Language of the case: Estonian

Referring court

Tallinna Halduskohus

Parties to the main proceedings

Applicant: Est Wind Power OÜ

Defendant: AS Elering

Questions referred

| 1. | Must the EU rules on State aid, in particular the first alternative of the definition of ‘start of works’ in paragraph 19(44) of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’, (1) namely ‘start of construction works on the investment’, be interpreted as meaning the start of construction works connected with any investment project or only the start of construction works connected with the installation of the investment project which will produce renewable energy? |
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1.

Must the EU rules on State aid, in particular the first alternative of the definition of ‘start of works’ in paragraph 19(44) of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’, (1) namely ‘start of construction works on the investment’, be interpreted as meaning the start of construction works connected with any investment project or only the start of construction works connected with the installation of the investment project which will produce renewable energy?

| 2. | Must the EU rules on State aid, in particular the first alternative of the definition of ‘start of works’ in paragraph 19(44) of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’, namely ‘start of construction works on the investment’, be interpreted as meaning that, in a situation in which the competent authority of the Member State has established the start of the construction works in connection with an investment, that authority must, in accordance with the principle of the protection of legitimate expectations, additionally assess the stage of development of the investment project and the likelihood of completion of that project? |
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2.

Must the EU rules on State aid, in particular the first alternative of the definition of ‘start of works’ in paragraph 19(44) of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’, namely ‘start of construction works on the investment’, be interpreted as meaning that, in a situation in which the competent authority of the Member State has established the start of the construction works in connection with an investment, that authority must, in accordance with the principle of the protection of legitimate expectations, additionally assess the stage of development of the investment project and the likelihood of completion of that project?

| 3. | If the previous question is answered in the affirmative: can other objective circumstances, such as pending litigation which prevents the continuation of the investment project, be taken into account in the assessment of the stage of development of the investment project? |
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3.

If the previous question is answered in the affirmative: can other objective circumstances, such as pending litigation which prevents the continuation of the investment project, be taken into account in the assessment of the stage of development of the investment project?

| 4. | Is it relevant in the present case that the Court of Justice of the European Union held, in Case C-349/17, (2)
  Eesti Pagar, paragraphs 61 and 68, that the question as to whether or not an incentive effect exists cannot be regarded as being a criterion that is clear and easily applicable by the national authorities, since its verification would necessitate, on a case-by-case basis, complex economic assessments, with the consequence that such a criterion would not comply with the requirement that the criteria for the application of an exemption must be clear and easily applicable by the national authorities? |
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4.

Is it relevant in the present case that the Court of Justice of the European Union held, in Case C-349/17, (2)
  Eesti Pagar, paragraphs 61 and 68, that the question as to whether or not an incentive effect exists cannot be regarded as being a criterion that is clear and easily applicable by the national authorities, since its verification would necessitate, on a case-by-case basis, complex economic assessments, with the consequence that such a criterion would not comply with the requirement that the criteria for the application of an exemption must be clear and easily applicable by the national authorities?

| 5. | If the previous question is answered in the affirmative: must the EU rules on State aid, in particular footnote 66 to paragraph 126 of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’, in conjunction with paragraph 19(44) of that communication, be interpreted as meaning that the national authority is not required to make an economic assessment of the investment project, on a case-by-case basis, when examining the criterion of start of works? |
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5.

If the previous question is answered in the affirmative: must the EU rules on State aid, in particular footnote 66 to paragraph 126 of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’, in conjunction with paragraph 19(44) of that communication, be interpreted as meaning that the national authority is not required to make an economic assessment of the investment project, on a case-by-case basis, when examining the criterion of start of works?

| 6. | If the previous question is answered in the affirmative: must the EU rules on State aid, in particular the last alternative of the definition of ‘start of works’ in paragraph 19(44) of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’, namely ‘other commitment that makes the investment irreversible’, be interpreted as meaning that any other commitment, with the exception of the buying of land and preparatory works (such as obtaining permits), makes the investment irreversible, irrespective of the cost of the commitment entered into? |
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6.

If the previous question is answered in the affirmative: must the EU rules on State aid, in particular the last alternative of the definition of ‘start of works’ in paragraph 19(44) of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’, namely ‘other commitment that makes the investment irreversible’, be interpreted as meaning that any other commitment, with the exception of the buying of land and preparatory works (such as obtaining permits), makes the investment irreversible, irrespective of the cost of the commitment entered into?

| 7. | Must the EU rules on State aid, in particular the concept of ‘start of works’ in paragraph 19(44) of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’, be interpreted as meaning that the existence of a right to use the land held by the energy producer and the existence of State authorisation for implementing the investment project are essential conditions for the start of works? |
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7.

Must the EU rules on State aid, in particular the concept of ‘start of works’ in paragraph 19(44) of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’, be interpreted as meaning that the existence of a right to use the land held by the energy producer and the existence of State authorisation for implementing the investment project are essential conditions for the start of works?

| 8. | If the previous question is answered in the affirmative: must the concept ‘State authorisation for implementing the investment project’ be interpreted in the light of national law, and can it be only the authorisation on the basis of which the construction work relating to the investment project is carried out? |
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8.

If the previous question is answered in the affirmative: must the concept ‘State authorisation for implementing the investment project’ be interpreted in the light of national law, and can it be only the authorisation on the basis of which the construction work relating to the investment project is carried out?

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(1)  OJ 2014 C 200, p. 1.

(2)  EU:C:2019:172.

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