Judgment;Summary — ECLI:EU:C:2022:282
Date: 2022-04-07
Language of the case: English
Court formation: Seventh Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: Greece

summary notification of that decision was published in the Official Journal of the European Union of 7 December 2018. 19 On 18 December 2018, Solar Ileias Bompaina sent a letter to the Commission asking whether the latter considered the decision at issue to be a formal rejection of the complaint lodged in Case SA.41794 or whether, on the contrary, that case was still regarded as pending. 20 By letter dated 8 February 2019, the Commission replied to Solar Ileias Bompaina that the decision at issue covered its complaint and that, on that basis, the Commission was closing that complaint. The proceedings before the General Court and the order under appeal 21 By application lodged at the Registry of the General Court on 2 March 2019, Solar Ileias Bompaina brought an action under Article 263 TFEU seeking, inter alia, annulment of recitals 111 to 121 of the decision at issue. 22 The General Court held, for the reasons set out in paragraphs 31 to 48 of the order under appeal, that Solar Ileias Bompaina had failed to establish that it was an ‘interested party’, within the meaning of Article 108(2) TFEU and Article 1(h) of Regulation 2015/1589, which is a prerequisite for its being able to plead infringement of its procedural rights, in so far as the Commission had found in the decision at issue, without initiating the formal investigation procedure, that no aid had been granted to the suppliers by Law 4254/2014. 23 Consequently, the General Court dismissed the action as inadmissible. Forms of order sought by the parties 24 By its appeal, Solar Ileias Bompaina claims that the Court should: – set aside the order under appeal; – declare the action in Case T‑143/19 admissible and refer the case back to the General Court; and – order the Commission to pay all of the costs. 25 The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs. The appeal Arguments of the parties 26 In support of its appeal, the appellant relies on two grounds of appeal, which it is appropriate to examine together, and by which it claims, in essence, that the General Court erred in law in refusing to recognise it as an ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589, the admissibility of its action being subject to acknowledgement of that status. 27 Although the appellant acknowledges that, in the order under appeal, the General Court correctly reflected the content of the complaint which it had lodged with the Commission and fully understood the content of its complaints, in particular as regards the fact that only RES producers were required to bear the financial burden associated with the elimination of the deficit on the RES special account, it nevertheless submits that the General Court should have recognised it as an ‘interested party’. In particular, it submits that, although the General Court correctly summarised the subject matter of its complaints in paragraph 10 of the order under appeal, it nevertheless failed to draw the necessary conclusions from this in paragraph 44 of that order, by failing to take account of the fact that suppliers and RES producers are in a comparable situation in the context of the reference system constituted by the special RES account and of the objective pursued by the new RES Agreement, namely the elimination of the deficit on that special account. In addition, the appellant submits that the General Court should have taken account of the fact that suppliers could also have been held partly responsible for the existence of that deficit. 28 According to the appellant, if suppliers had also been forced to contribute to the elimination of that deficit, its financial situation would have been better. There is a correlation between, on the one hand, the alleged aid which suppliers obtained by being exempt from contributing to the elimination of that deficit and, on the other hand, the reduction in the feed-in tariffs paid to RES producers such as the appellant in such a way that its interests and market position were affected by this. 29 In that regard, in its examination, the General Court infringed the rules relating to proof of the status of ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589. 30 In particular, the General Court wrongly held that the appellant should, for the purposes of being accorded that status, have demonstrated the effects of the alleged aid on its market position or its economic interests. Thus, according to the appellant, in the judgment of 24 May 2011, Commission v Kronoply and Kronotex (C‑83/09 P, EU:C:2011:341), the Court of Justice accorded the appellants that status solely on the basis of their arguments that it could not be ruled out that the aid at issue in that case had an effect on their interests, without requiring them to actually demonstrate the existence of that possibility. 31 Consequently, according to the appellant, it cannot be required to prove what the actual effects of the revision of feed-in tariffs for RES producers would have been if the burden of eliminating the deficit on the RES special account had been allocated to those producers and the suppliers. It is sufficient to state that it cannot be ruled out that those feed-in tariffs could have been more favourable for RES producers if suppliers had also been asked to contribute to refinancing the special RES account. 32 The Commission contends that that line of argument must be rejected as unfounded. Findings of the Court 33 As a preliminary point, it should be borne in mind that Article 1(h) of Regulation 2015/1589 defines the concept of ‘interested party’ as referring to ‘any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations’. It should be noted that that provision replaced Article 1(h) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1), which was worded in identical terms. Thus, the principles identified in the case-law relating to the latter provision, recalled by the General Court, in particular in paragraph 31 of the order under appeal, are applicable for the purposes of interpreting Article 1(h) of Regulation 2015/1589. 34 Under that provision, ‘interested party’ means inter alia any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, that is to say, in particular competing undertakings of the beneficiary of that aid. In other words, that term covers an indeterminate group of persons (judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 63 and the case-law cited). 35 As a consequence, that provision does not rule out the possibility that an undertaking which is not a direct competitor of the beneficiary of the aid can be categorised as an interested party, provided that that undertaking demonstrates that its interests could be adversely affected by the grant of the aid. For that purpose, it is necessary for that undertaking to establish, to the requisite legal standard, that the aid is likely to have a specific effect on its situation (see, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 64 and 65 and the case‑law cited). Thus, although the adverse effect on the interests of that undertaking may be only potential, a risk of a specific effect on those interests must be capable of being demonstrated to the requisite legal standard. 36 In the present case, it is apparent from the findings of fact made by the General Court in paragraphs 6 to 8 of the order under appeal, which are not disputed by the appellant, that the new RES Agreement, approved by the Greek legislature, has the effect of reducing the feed-in tariffs paid to the appellant, in its capacity as an RES producer. That agreement is intended to make good the deficit on the special RES account, the purpose of which is to finance the activities of RES producers. 37 According to the appellant, since the Greek legislature failed to impose a contribution on suppliers, even though they could, in its view, have been held partly responsible for that deficit, it is unjustly disadvantaged financially. The appellant maintains that if suppliers had been asked to contribute by the Greek legislature in order to make good that deficit, its financial situation might have been more favourable, since it would not have been necessary to reduce the feed-in tariffs from which it benefited. Thus, it submits, in essence, that that failure by the Greek legislature had an impact on its interests and that there is therefore a link between the exemption enjoyed by suppliers and the reduction of those feed-in tariffs. 38 In the light of those factual elements, the General Court correctly applied the criteria set out in the case-law referred to in paragraphs 34 and 35 of this judgment by stating, in paragraph 37 of the order under appeal, that, in order to be able to be classified as an ‘interested party’, the appellant had to establish either that it was in direct or indirect competition with the beneficiaries of the alleged aid or show that that aid was likely to have a practical impact on its situation. 39 In paragraphs 39 to 41 of the order under appeal, the General Court first of all found that suppliers and RES producers were not in competition, since they operated at different levels of the electricity market in Greece. 40 Next, the General Court determined whether the alleged aid could have had a practical impact on the appellant’s situation and whether the appellant had demonstrated, to the requisite legal standard, such a potential impact. 41 In that regard, it is apparent from the order under appeal that Law 4254/2014 merely reduced the support previously provided to RES producers, that being the solution chosen by the Greek legislature in order to remedy the fact that the aid scheme for RES producers had become too costly and had to be refinanced. It is in that context that the General Court found, in paragraph 44 of the order under appeal, that, although there was no doubt that Law 4254/2014, which provides for reduced tariffs for electricity produced from renewable energy sources, adopted in order to reduce the deficit on the special RES account, had had an effect on RES producers, the appellant had nevertheless failed to demonstrate that there is a correlation between the reduced tariffs for the renewable energy sources and the non-payment of a contribution to the special RES account by the electricity suppliers, or that the alleged aid to the electricity suppliers could have affected its market position or its interests. In particular, the appellant had not explained how the alleged exemption of electricity suppliers by Law 4254/2014 could have influenced the setting of the new feed-in tariffs and rebates applicable to RES producers, given that the adjustments thus made were intended principally to offset the overcompensation previously granted to those producers. 42 Lastly, having regard, in particular, to those latter findings of fact, the General Court held, in paragraph 48 of the order under appeal, that the appellant had not established that it was an ‘interested party’, within the meaning of Article 1(h) of Regulation 2015/1589. 43 Since the General Court thus correctly applied the criteria established by the relevant case-law, referred to in paragraphs 34 and 35 above, there was no error of law on its part. Having regard to the factual considerations at issue, which, moreover, fall within the exclusive jurisdiction of the General Court, the relevant criterion which it had to take into account is whether there is a potential causal link, established to the requisite legal standard, between the alleged aid and the actual prejudice to the interests or market position of the undertaking concerned. By contrast, the question whether another category of economic operators may have contributed to the occurrence of the deficit at the level of the abovementioned aid scheme is irrelevant. Similarly, the possibility that RES producers and the suppliers were in a comparable situation, in the light of the objective of reducing the deficit on the special RES account, is irrelevant for the purposes of assessing the status of ‘interested party’, within the meaning of Article 1(h) of Regulation 2015/1589. 44 Consequently, the General Court did not err in law in refusing to accord the appellant the status of ‘interested party’, within the meaning of Article 1(h) of Regulation 2015/1589, and in therefore dismissing its action as inadmissible. 45 Since the two grounds of appeal put forward in support of the appeal are unfounded, the appeal must be dismissed in its entirety. Costs 46 Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 47 Since the Commission has applied for costs to be awarded against the appellant and the latter has been unsuccessful, the appellant must be ordered to bear its own costs and to pay those incurred by the Commission. On those grounds, the Court (Seventh Chamber) hereby: 1. Dismisses the appeal; 2. Orders Solar Ileias Bompaina AE to pay the costs. von Danwitz Xuereb Kumin Delivered in open court in Luxembourg on 7 April 2022. A. Calot Escobar K. Lenaerts Registrar President * Language of the case: English.