Opinion of the Advocate General — ECLI:EU:C:2023:241
Date: 2023-03-23
Language of the case: Estonian
Subject matter: State aids;Competition;Energy
Procedure: Reference for a preliminary ruling
Origin: Estonia

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
5 January 2022 
Referring court: 
Tallinna Halduskohus (Administrative Court, Tallinn) (Estonia) 
Date of the decision to refer: 
5 January 2022 
Applicant: 
Est Wind Power OÜ 
Defendant: 
AS Elering 
  
Subject matter of the main proceedings 
Action brought by Est Wind Power OÜ seeking the annulment of the decision of 
Elering AS of 13 April 2021 by which the latter assessed that the investment 
project of Est Wind Power OÜ does not meet the conditions for the grant of 
support for renewable energy under the aid scheme approved by a State aid 
decision, and seeking an order requiring Elering AS to reconsider the application 
of Est Wind Power OÜ. 
Subject matter and legal basis of the request 
The request for a preliminary ruling under Article 267 TFEU seeks an 
interpretation of the State aid rules under EU law, in particular paragraph 19(44) 
and footnote 66 to paragraph 126 of the Commission Communication ‘Guidelines 
on State aid for environmental protection and energy 2014-2020’, and State aid 
decision SA.47354 (2017/NN) of the Commission of 6 December 2017. 
EN 
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Questions referred for a preliminary ruling 
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’, 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? 
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, 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? 
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 
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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? 
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? 
Provisions of EU law cited 
Communication from the Commission ‘Guidelines on State aid for environmental 
protection and energy 2014-2020’ (OJ 2014 C 200, p. 1; ‘the Guidelines’), 
paragraph 19(44) and footnote 66 to paragraph 126. 
Decision C(2017) 8456 final of the European Commission of 6 December 2017, 
‘Subject: State Aid SA.47354 (2017/NN) – Estonia – Amendments to Estonian 
RES and CHP support scheme’ (‘State aid decision SA.47354). 
Judgment of the Court of Justice of 5 March 2019, Eesti Pagar, C-349/17 
(EU:C:2019:172), paragraphs 61 and 68). 
Provisions of national law cited 
Law on the electricity market (ELTS) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The Päite-Vaivina wind farm will comprise 28 wind turbines with a total capacity 
of 64.4 MW, to be erected on 28 plots of land. On 27 April 2004, Est Wind Power 
OÜ (‘Est Wind Power’) entered into a connection contract with Elering AS 
(‘Elering’) and paid connection fees of EUR 522 813.93. In 2008, Est Wind 
Power erected the wind measurement masts of the Päite-Vaivina wind farm and 
incurred costs of EUR 212 002.15 in order to do so. On 11 May 2010, Est Wind 
Power acquired development rights for the land of the Päite-Vaivina wind farm. 
On 19 January 2016, the Toila Municipal Council established the planning 
conditions for the Päite-Vaivina wind farm. On 4 February 2016, Est Wind Power 
applied for a construction permit for the wind farm. On 20 April 2016, the 
Ministry of Defence refused to approve the construction plans for the wind farm, 
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and, by order of 26 April 2016, the Toila Municipal Council refused to grant 
construction permits. 
2 On 29 September 2020, in accordance with Paragraph 59(23) of the Law on the 
Electricity Market (ELTS), Est Wind Power applied to Elering for an assessment 
of the compliance of the investment project for the wind farm to be constructed in 
Päite-Vaivina, Toila Parish (‘Päite-Vaivina wind farm’) with the conditions set 
out in Paragraph 59(22) of the ELTS. 
3 In Assessment No 22-7/2020/29-5 of 13 April 2021, Elering found that, as an 
investment project, the Päite-Vaivina wind farm of Est Wind Power does not meet 
the requirements set out in Paragraph 59(22) of the ELTS, since, as at 
31 December 2016, Est Wind Power had not commenced the construction works 
for the wind farm investment project within the meaning of point 2 of 
Paragraph 59(22) of the ELTS and had not entered into any commitments that 
would render the investment project irreversible within the meaning of point 4 of 
Paragraph 59(22) of the ELTS. According to that assessment, the only irreversible 
commitments entered into by the applicant are the connection fee and the order for 
the wind measurement mast. They do not represent a significant part of the total 
costs of the investment project and could not have brought the project to a stage 
where completion was highly probable as at 31 December 2016. Furthermore, the 
applicant does not have the required building rights to carry out the Päite-Vaivina 
wind farm investment project. The total cost of the Päite-Vaivina wind farm 
investment project is EUR 67 224 000. 
4 On 13 May 2021, Est Wind Power brought an action before the Administrative 
Court, Tallinn, seeking the annulment of Elering’s assessment of 13 April 2021 
and an order requiring Elering to reconsider Est Wind Power’s application. 
The essential arguments of the parties in the main proceedings 
5 The applicant submits that Elering’s assessment of 13 April 2021 is unlawful. It 
states that it entered into an irreversible commitment in relation to the Päite-
Vaivina wind farm and had made investments in excess of EUR 2.1 million as at 
31 December 2016. 
6 The applicant takes the view that point 4 of Paragraph 59(22) of the ELTS 
excludes the costs of acquiring immovable property from irreversible investments, 
since such property can be used for various purposes. However, the development 
rights granted to the applicant are intended solely for the construction of the wind 
farm and have no other possible use. 
7 According to the applicant, State aid decision SA.47354 expressly states that the 
concept of irreversible investment does not include the ‘buying of land and 
preparatory works’ (recital 36). In that regard, recital 42 of that decision requires 
that, in order to be considered as an existing producer, the producer must have ‘the 
legal title to the land on which the project would be developed’. Thus, in its State 
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aid decision SA.47354, the Commission drew an unequivocal distinction between 
the buying of land and the acquisition of rights to use land, whereby the former 
cannot be regarded as an irreversible investment. Accordingly, the defendant 
should have taken the costs of acquiring the development rights into account as 
part of the investment made by the applicant. 
8 According to the applicant, there is no justification for the defendant’s approach, 
by which all the costs of consultancy, planning, consultations and studies were not 
taken into account as irreversible costs. The defendant is required to assess, in 
respect of each individual study and consultation, whether it is a preliminary 
feasibility study and, on that basis, to decide whether the costs are to be included 
in the irreversible costs. 
9 The applicant submits that the defendant erred in its determination of the total cost 
of the project. If the preparatory works were not taken into account as irreversible 
costs, the amounts incurred for those works should have also been excluded from 
the total budget of the project. By contrast, it should be assumed that, in the 
present case, the self-financing for the project amounted to EUR 13 444 800, of 
which EUR 2 177 388.95 has been paid. This corresponds to 16.2% of the amount 
of the self-financing for the project. The remaining EUR 53 779 300 of the project 
budget was to be contributed by the financing authority at a later stage of the 
project. The size of the investment and the consequences of abandoning the 
investment are decisive factors in the assessment of the irreversibility of the 
commitments made. The key question is whether the project is at a stage of 
development at which completion is very likely. If the relative proportion of the 
commitments entered into were to be regarded as the decisive factor, then, in the 
case of an investment for a project with a relatively small total budget, even a 
small investment could be regarded as irreversible. In business practice, the 
absolute cost of abandoning a project (for example, the writing-off of an 
investment of EUR 3 million) is significant. It is irrelevant in this respect whether 
those costs arise from the abandonment of a project worth EUR 20 million or 
EUR 100 million. 
10 The legislation does not set a threshold above which the scope of the 
commitments entered into by way of the investment project is sufficient. 
Nevertheless, the defendant has created such values itself. If any (subjective) 
circumstances other than the absolute amount of the expenditure incurred are to be 
taken into account, it would be appropriate to take the economic situation and 
investment capacity of the individual into account. The expenditure of more than 
EUR 2.1 million incurred by the applicant prior to 31 December 2016 is an 
objectively significant amount which the applicant would lose if it were to 
abandon the investment. The expenditure incurred represented 95.7% of the 
applicant’s equity and 90.8% of its fixed assets as at 31 December 2016. 
11 The applicant submits that it has commenced construction work on the Päite-
Vaivina wind farm. It is common ground that the wind farm’s connection point to 
the Allika substation was completed by 31 December 2016. In addition, the 
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applicant has erected wind measurement masts. The defendant misapplied the 
applicable law by attaching additional conditions to the scope of the construction 
works (see State aid decision SA.47354, recital 36; Paragraph 59(22) of the 
ELTS); Recital 42 of State aid decision SA.47354 does not require building rights, 
but State authorisation for constructing the project. For the purposes of renewable 
energy aid and the corresponding State aid approval, a land use plan and the 
planning conditions based on it may also constitute a document attesting to the 
granting of such State authorisation. 
12 The defendant contests the application and requests that it be dismissed. 
According to the defendant, the contested decision is lawful. 
13 It submits that, according to Paragraph 59(22) of the ELTS, only producers in 
existence on 31 December 2016 and having a generating installation with a 
capacity exceeding 1 MW are eligible. In the light of Paragraph 59(21) of the 
ELTS, footnote 66 and paragraph 19(44) of the Guidelines, and recital 42 of State 
aid decision SA.47354, the compliance of an investment project with the 
conditions set out in points 2 to 4 of Paragraph 59(22) of the ELTS requires that 
(1) the developer has obtained the necessary authorisation to carry out the project 
(in particular a construction permit) and has a legal right to use the land intended 
for the project; (2) the developer has started producing electricity, started 
construction works related to the investment project, entered into a firm 
commitment to order equipment for the construction of a generating installation or 
entered into any other commitment that makes the investment project irreversible; 
and (3) for each of those subcategories of start of construction works, it must be 
assessed whether, as at 31 December 2016, the project was at a stage of 
development at which the project is highly likely to be completed. 
14 The defendant submits that the applicant does not fulfil the definition of an 
existing producer because (1) it had not started construction work on the project as 
at 31 December 2016 and had not entered into any other commitment that would 
have made the project irreversible, and (2) it did not have building rights for wind 
turbines as at 31 December 2016. In total, the applicant had entered into firm 
commitments amounting to EUR 734 816.08 as at 31 December 2016. The total 
cost of the Päite-Vaivina wind farm investment project is EUR 67 224 000. 
Therefore, only 1.09% of the total expenditure of the investment project had been 
incurred as at 31 December 2016. Thus, the amount of expenditure incurred, in 
comparison with the total cost of the project, was not sufficient to give rise to 
legitimate expectations. 
15 According to the defendant, it used the exact percentage of the total costs incurred 
as an additional indicator in its assessment, and it was stated that that percentage 
is not the only decisive indicator. In addition, the defendant took into account the 
general scale of the commitments in relation to the overall scale of the project and 
the fact that the investments were not made in the wind turbine as the core 
component of the investment project. 
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16 In recitals 62 to 64 of State aid decision SA.47354, the Commission already 
assessed the existence of an incentive effect created by the specific aid scheme 
and found that the aid has a significant incentive effect. The defendant takes the 
view that that State aid decision establishes the criterion whereby the project must, 
in essence, be at such a stage of development that it is highly likely to be 
completed. The meaning ascribed to the incentive effect in the defendant’s 
assessment of the existing producer pursuant to State aid decision SA.47354 
differs from that in the assessment of the incentive effect under the General Block 
Exemption Regulation, 1 since State aid decision SA.47354 expressly requires an 
assessment of the stage of development. Therefore, the explanations provided by 
the Court of Justice in its judgment of 5 March 2019 in Eesti Pagar (C-349/17, 
EU:C:2019:172) in relation to the national authority’s examination of the 
incentive effect are not transferable to the assessment under State aid rules in the 
present case. In recital 42 of State aid decision SA.47354, the Commission 
expressly stated that the granting authorities should consider as existing producers 
those producers whose project was at such a stage of development on 1 January 
2017 that it would be very likely to be completed, thereby implying, in essence, 
the irreversibility of the project and a substantive assessment. This does not mean 
that the defendant would begin to verify the actual – that is to say, material – 
existence of an incentive effect in its own assessment under the Guidelines, since 
the Commission has exclusive competence to assess the compatibility of State aid. 
The defendant assesses the start of construction works on the substance, to such an 
extent that enables it to determine whether the project was at such a stage of 
development on 1 January 2017 that it would be very likely to be completed. In its 
opinion of 17 January 2020 in administrative case No 3-19-218, the European 
Commission confirmed that the start of construction works must be assessed on 
the substance. The Commission also confirmed, in its correspondence following 
State aid decision SA.47354, that the defendant ought to assess the projects on the 
substance and take into account the amount of the investment made in relation to 
the size of the overall project. This is confirmed by the definition of ‘preparatory 
works’. An investment project’s stage of development must be assessed in respect 
of all subcategories of the start of construction works. In accordance with State aid 
decision SA.47354, it is essential that the project should be at a stage of 
development on 31 December 2016 at which it is very likely to be completed, and 
this applies to all alternatives of the start of construction works. In accordance 
with that decision, the concept of ‘start of construction works’ is linked to the 
principle of legitimate expectations. 
17 The defendant submits that, in the case of an existing producer, it is necessary for 
the producer to have obtained State authorisation to implement the project and to 
have the right to use the land (see State aid decision, recital 42; opinion of the 
Commission in administrative case No 3-19-218, point 13). The criterion of the 
right to use the land and the State authorisation, that is to say, the building rights, 
 
1 Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid 
compatible with the internal market in application of Articles 107 and 108 of the Treaty (Text 
with EEA relevance) (OJ 2014 L 187, p. 1). 
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must be determined by reference to national law. The building rights could not be 
granted by virtue of the land use plan and planning conditions, and it was also 
necessary to go through the construction permit procedure, including obtaining the 
necessary approvals for the construction project. Therefore, the Päite-Vaivina 
wind farm investment project did not reach a stage at which it was very likely to 
be completed, including with regard to the building rights. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
18 The parties are in dispute as to whether the defendant lawfully found, on the basis 
of Paragraph 59(23) of the ELTS, that the applicant does not meet the conditions 
of Paragraph 59(22) of the ELTS, that is to say, it does not fulfil the definition of 
an existing producer, who would be entitled to aid for renewable energy under an 
existing aid scheme. 2 The question that arises in this respect is what conditions 
are laid down in Paragraph 59(22) of the ELTS and whether additional criteria 
arise from State aid decision SA.47354 and the Guidelines, aside from those in 
that provision. 
19 It is common ground that, in accordance with Paragraph 59(22) of the ELTS, an 
existing producer is deemed to be a producer which, by 31 December 2016 at the 
latest, has commenced the construction works on the generating installations to 
which the investment project relates, and has, inter alia, (1) commenced electricity 
production, or (2) commenced construction works relating to that investment 
project, or (3) entered into a firm commitment to order equipment for the 
construction of the generating installation, or (4) entered into any other 
commitment that renders the investment project irreversible; the buying of the 
land on which the generating installation will be located, the obtaining of permits, 
and preparatory works are not regarded as commitments that render the 
investment project irreversible. 
20 In the present case, it is common ground that the applicant had not yet started 
producing electricity on 31 January 2016 and had not entered into a firm 
commitment to order equipment for the construction of the generating installation. 
However, the question that arises is whether, as at 31 January 2016, the applicant 
had started construction works on the Päite-Vaivina wind farm (point 2 of 
Paragraph 59(22) of the ELTS) or entered into any other commitment rendering 
that investment project irreversible (point 4 of Paragraph 59(22) of the ELTS). 
With regard to the latter condition, the parties to the proceedings also take 
different views regarding the content to be given to the irreversibility of the 
investment project, namely whether it includes an economic analysis of the share 
of the expenditure incurred under the investment project in the total cost of the 
 
2 This is the exception provided for in paragraph 126 of the Guidelines (footnote 66), whereby 
existing producers are entitled to apply for aid for a project without going through a competitive 
bidding process (see State aid decision SA.47354, recital 35), that is to say, where a producer 
meets the requirements of Paragraph 59(22) of the ELTS, it is automatically entitled to apply for 
aid under that law (see State aid decision SA.47354, recital 38). 
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project and the case where any part of the expenditure incurred is to be regarded 
as preparatory works or expenditure excluded from the irreversible expenditure 
(for example, the buying of land or acquisition of building rights) and whether, in 
that case, when the economic analysis is carried out, such expenditure should also 
be excluded from the comparison of the percentage share in the total cost of the 
project represented by the expenditure incurred. There is also disagreement as to 
whether the applicant had State authorisation for the implementation of the project 
on 31 January 2016 and whether the term ‘State authorisation’ in 
paragraph 19(44) of the Guidelines is to be understood as meaning a construction 
permit, or whether it can also be a planning document (land use plan or detailed 
building plan) or planning conditions that precede the grant of a construction 
permit under national law. 
21 The applicant takes the view that it started the construction works when it built the 
wind measurement masts and the wind farm’s connection point to the Allika 
substation before 31 December 2016. In that respect, the defendant included in the 
irreversible expenditure the cost of the wind measurement mast in the amount of 
EUR 212 002.15 and the connection fees of EUR 522 813.93. However, the 
defendant took the view that, if the Päite-Vaivina wind farm investment project 
was not at such a stage of development on 31 January 2016, it was very likely to 
be completed, the requirements of point 2 of Paragraph 59(22) of the ELTS could 
not be met either; otherwise, submits the defendant, the system provided for in 
Paragraph 59(22) of the ELTS would lose its meaning and the applicant could 
evade the requirements of the principle of the protection of legitimate 
expectations, on which that provision is based. Thus, the defendant does not 
dispute that the applicant has completed the construction of the wind measurement 
mast and the Päite-Vaivina wind farm’s connection point at the Allika substation, 
but considers that the start of construction works is precluded by the stage of 
development of the investment project. Consequently, the parties are in dispute as 
to whether the irreversibility of the investment project must be assessed in the 
case of all the alternatives of ‘start of construction works’ (Paragraph 59(22) of the 
ELTS) or only the last alternative, ‘other commitment that makes the investment 
project irreversible’ (point 4 of Paragraph 59(22) of the ELTS). 
22 Recital 42 of State aid decision SA.47354 defines the term ‘existing producer’ as 
follows: ‘… the granting authorities should consider as “existing producer” those 
producers whose project on 1 January 2017 was in such state of development that 
it would very likely be completed so that they should receive support under the 
existing support scheme (legitimate expectations). This requires as a minimum 
that the project developers had obtained the necessary state authorisation for 
constructing the project, and that they had the legal title to the land on which the 
project would be developed’. The Commission’s decision is binding in its entirety 
on the addressee. 3 In that respect, the conditions set out in the statement of 
 
3 Treaty on the Functioning of the European Union (OJ 2012 C 326, pp. 47-390), fourth 
paragraph of Article 288 
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reasons in the Commission’s decision form an integral part of the aid scheme, 
irrespective of whether or not those conditions are laid down in national law. 4 
23 In its opinion of 17 January 2020 in administrative case 3-19-218, the 
Commission stated, with respect to ‘start of works’ as defined in paragraph 19(44) 
of the Guidelines, that that definition covers ‘either the start of construction works 
on the investment or the first firm commitment to order equipment or other 
commitment that makes the investment irreversible, whichever is the first in time’ 
(point 11); in point 13, the Commission adds, in relation to footnote 66 of the 
Guidelines, that the ‘start of works’ must have taken place before 1 January 2017, 
which means that one of the three alternative events referred to in the first 
sentence of paragraph 19(44) of the Guidelines must have taken place. The 
Commission also confirms, in point 14 of its opinion of 17 January 2020, that the 
term ‘existing producer’ covers only those producers whose project on 1 January 
2017 was in such a state of development that it would very likely be completed so 
that they should receive support under the existing support scheme (legitimate 
expectations). 
24 In the light of the foregoing, it is unclear how the first alternative of the term ‘start 
of works’ in paragraph 19(44) of the Guidelines, namely ‘start of construction 
works on the investment’, is to be understood. Is it to be interpreted as meaning 
that such construction works encompass the start of any construction works (for 
example, the construction of the connection point and the wind measurement 
mast, which are necessary for the construction of the wind farm) related to the 
investment project or only the construction works related to the implementation of 
the investment project via which renewable energy is to be produced (for 
example, the wind turbine)? If the competent authority of the Member State has 
established that the construction works for the investment project have started, 
does it follow from paragraph 19(44) of the Guidelines that the national authority 
must further assess whether that renders the investment irreversible, that is to say, 
must further assess the stage of development of the investment project? In the 
event that the competent authority of the Member State must also take the stage of 
development of the investment project into account: can objective circumstances, 
such as pending litigation (for example, in relation to the refusal of a construction 
permit), which prevent the continuation of the investment project also be taken 
into account in the assessment of the likelihood of completion of the investment 
project? 
25 If it is found that the applicant did not start the construction works before 
31 December 2016, it is necessary to verify whether it entered into any other 
commitment before 31 December 2016 that renders the investment irreversible 
(point 4 of Paragraph 59(22) of the ELTS). In such a case, the question arises as to 
how to understand which of the other commitments entered into by the applicant 
are irreversible and whether this includes an economic analysis of the project in 
 
4 Judgment of the Court of Justice of 13 June 2013, Ryanair v Commission, C-287/12 P, not 
published, EU:C:2013:395, paragraph 67. 
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order to clarify whether the investment project has reached such a stage of 
development that it is highly likely to be completed. 
26 The defendant submits that, in State aid law, it is important to distinguish the 
question as to whether an incentive effect actually exists on the substance from 
that as to whether and in what way the existence of an incentive effect is to be 
formally verified by the grantor of aid in an individual case (the incentive effect is 
deemed to exist on the basis of formal criteria). The defendant concludes that 
recital 42 of State aid decision SA.47354 requires it to assess the start of works on 
the substance, that is to say, to such an extent that enables it to determine whether 
the project was at such a stage of development on 31 December 2016 that it would 
be very likely to be completed. According to the defendant, it is common ground 
that the Commission has exclusive competence to assess the compatibility of State 
aid with the internal market. The Commission also assesses the incentive effect on 
the substance. This is also the case in the present dispute, in which the incentive 
effect of the existing scheme was assessed in Section 3.3.4.4 of State aid decision 
SA.47354. At the same time, the defendant, proceeding on the basis of recital 42 
of State aid decision SA.47354, substantively assessed the other commitments 
entered into. 
27 The referring court agrees with the defendant in so far as it submits that, in order 
to assess whether another commitment entered into by the applicant renders the 
investment irreversible, it is necessary to examine each item of expenditure 
separately and to identify the precise nature of the commitments entered into. 5 
However, in so far as the defendant has established that the expenditure on the 
wind measurement mast and the connection fees in connection with the 
investment project are justified, but that the condition in point 4 of 
Paragraph 59(22) of the ELTS is not met, the question arises as to whether and 
how the competent authority of the Member State must assess the incentive effect 
of the State aid. 
28 The Court has clarified that, in the field of State aid, it is essential that the criteria 
for the application of an exemption must be clear and easily enforceable by the 
national authorities 6 and that whether or not such an effect exists cannot be 
regarded as being a clear criterion, since, inter alia, its verification would 
necessitate, on a case-by-case basis, complex economic assessments. 7 Although 
in Case C-349/17, cited above, State aid was granted on the basis of the General 
Block Exemption Regulation, unlike in the present case, which concerns the grant 
of aid on the basis of an aid scheme approved by a State aid decision, both cases 
concern the application of an exception as well as the incentive effect of the aid 
 
5 See judgment of the Court of 5 March 2019, Eesti Pagar, C-349/17, EU:C:2019:172, 
paragraph 75. 
6 See judgment of the Court of 5 March 2019, Eesti Pagar, C-349/17, EU:C:2019:172, 
paragraph 61. 
7 Ibid., paragraph 68. 
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and the assessment of that effect by the national authority. Therefore, the question 
arises as to whether the considerations set out in the judgment of 5 March 2019 in 
Case C-349/17, Eesti Pagar, in particular those in paragraphs 61 and 68, are also 
relevant in the present case. If that question is answered in the affirmative, must 
footnote 66 to paragraph 126 of the Guidelines, in conjunction with 
paragraph 19(44) thereof, 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 for the start of works? If so, must the 
last alternative of the term ‘start of works’ in paragraph 19(44) of the Guidelines, 
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 a construction permit), makes the 
investment irreversible, irrespective of the cost of the commitment entered into 
and the likelihood of the project being completed? 
29 In addition, the question arises as to whether the essential conditions within the 
meaning of paragraph 19(44) of the Guidelines are (1) the existence of a right to 
use the land and (2) the existence of State authorisation for implementing the 
investment project. Lastly, if the previous question is answered in the affirmative, 
must the concept of ‘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, and not the planning documents (such as the land use plan) or the 
planning conditions which preceded the construction permit? 
30 The referring court takes the view that the request for a preliminary ruling does 
not concern the validity 8 of State aid decision No SA.47354, but the interpretation 
of the State aid rules under EU law, with the result that the request for a 
preliminary ruling is admissible. 
 
8  See judgment of the Court of Justice of 25 July 2018, Georgsmarienhütte, C-135/16, 
EU:C:2018:582.