Opinion of the Advocate General — ECLI:EU:C:2019:38
Date: 2019-01-17
Language of the case: Lithuanian
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Lithuania) lodged on 18 December 2017 — ‘Achema’ AB, ‘Orlen Lietuva’ AB, ‘Lifosa’ AB v Valstybinė kainų ir energetikos kontrolės komisija (VKEKK) (Case C-706/17) Language of the case: Lithuanian Referring court Lietuvos vyriausiasis administracinis teismas Parties to the main proceedings Appellants: ‘Achema’ AB, ‘Orlen Lietuva’ AB, ‘Lifosa’ AB Other party to the proceedings: Valstybinė kainų ir energetikos kontrolės komisija (VKEKK) Questions referred Is the legislative framework for the provision of public interest services in the electricity sector (‘PIS’) and their financing (compensation) (‘the PIS scheme’) — established in the Lithuanian Law on electricity, in the Lithuanian Law on energy from renewable sources, in the Lithuanian Law on integration of the electricity system into European electricity systems, in the Lithuanian Law implementing the Law amending and supplementing Articles 2, 11, 13, 14, 16, 20 and 21 of the Law on energy from renewable sources and in the legal measures implementing those laws, including the Procedure for the provision of public interest services in the electricity sector, approved by Resolution No 916 of the Government of the Republic of Lithuania of 18 July 2012, the Procedure for the administration of monies for public interest services in the electricity sector, approved by Resolution No 1157 of the Government of the Republic of Lithuania of 19 September 2012, and so forth — as in force in 2014, or part thereof, to be regarded as State aid (a State aid scheme) for the purposes of Article 107(1) of the Treaty on the Functioning of the European Union, including the following questions: – in circumstances such as those in the present case, is Article 107(1) TFEU to be interpreted as meaning that PIS monies are, or are not, to be regarded as State resources? – is Article 107(1) TFEU to be interpreted as meaning that a case where an obligation is imposed on network operators (undertakings) to purchase electricity from electricity producers at a fixed price (rate) and/or to balance the electricity, and the losses sustained by network operators on account of that obligation are compensated with monies which are possibly attributable to State resources, is not to be regarded as aid granted to electricity producers through State resources? – is Article 107(1) TFEU to be interpreted as meaning that, in circumstances such as those in the present case, the following support is, or is not, to be regarded as selective and/or capable of affecting trade between Member States: support granted to an undertaking which implements a project of strategic importance, such as ‘NordBalt’; support granted to undertakings which are entrusted with ensuring the security of electricity supply for a given period; support to compensate for the losses reflecting market conditions and actually sustained by persons, such as the developers of solar photovoltaic plants who are at issue, by reason of the State’s refusal to fulfil commitments entered into (by reason of national regulatory changes); support granted to undertakings (network operators) with the objective of compensating for actual losses sustained in their discharging of the obligation to purchase electricity at a fixed price from electricity producers providing PIS and to balance the electricity? – is Article 107(1) TFEU, applied in conjunction with Article 106(2) TFEU, to be interpreted as meaning that, in circumstances such as those in the present case, the PIS scheme in question (or part thereof) is, or is not, to be regarded as satisfying the criteria laid down in paragraphs 88 to 93 of the judgment of the Court of Justice of the European Union of 24 July 2003 in Altmark Trans and Regierungspräsidium Magdeburg (C-280/00)? – is Article 107(1) TFEU to be interpreted as meaning that, in circumstances such as those in the present case, the PIS scheme (or part thereof) is, or is not, to be regarded as distorting or threatening to distort competition? ____________