Judgment;Abstract — ECLI:EU:T:2022:713
Date: 2022-11-16
Language of the case: Dutch
Court formation: Seventh Chamber, Extended Composition
Subject matter: State aids;Competition
Procedure: Action for annulment - successful
Origin: Netherlands

JUDGMENT OF THE GENERAL COURT (Seventh Chamber, Extended Composition) 16 November 2022 (*) ( State aid – Netherlands law prohibiting the use of coal for the production of electricity – Early closure of a coal-fired power plant – Award of compensation – Decision not to raise any objections – Decision declaring the compensation compatible with the internal market – No express classification as ‘State aid’ – Action for annulment – Challengeable act – Admissibility – Article 4(3) of Regulation (EU) 2015/1589 – Legal certainty ) In Case T‑469/20, Kingdom of the Netherlands, represented by M. Bulterman, M. de Ree and J. Langer, acting as Agents, applicant, v European Commission, represented by H. van Vliet, B. Stromsky and D. Recchia, acting as Agents, defendant, THE GENERAL COURT (Seventh Chamber, Extended Composition), composed, during the deliberations, of R. da Silva Passos, President, V. Valančius (Rapporteur), I. Reine, L. Truchot and M. Sampol Pucurull, Judges, Registrar: L. Ramette, Administrator, having regard to the written procedure, inter alia: – the plea of inadmissibility raised under Article 130 of the Rules of Procedure of the General Court by the Commission, by separate document lodged at the Registry of the General Court on 5 October 2020, – the order of 23 February 2021 reserving the decision on the plea of inadmissibility for the final judgment, further to the hearing on 15 June 2022, gives the following Judgment 1 By its action based on Article 263 TFEU, the Kingdom of the Netherlands requests the annulment of Commission Decision C(2020) 2998 final of 12 May 2020 on State aid SA.54537 (2020/NN) – Netherlands, Prohibition of coal for the production of electricity in the Netherlands (‘the contested decision’). Background to the dispute 2 On 27 March 2019, the Netherlands authorities notified the European Commission of their project of Wet verbod op kolen bij elektriciteitsproductie (Law on the prohibition of coal for the production of electricity; ‘the Law’), in accordance with Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1). 3 The Law, which aims to cut carbon dioxide (CO2) emissions in the Netherlands and provides for the possibility of awarding compensation for the damage sustained by a power plant which, compared to other power plants, would be disproportionally affected by the prohibition to use coal for the production of electricity, was not notified to the Commission in terms of Article 108(3) TFEU. 4 However, following the notification of the draft bill by the Kingdom of the Netherlands in compliance with Directive 2015/1535, the Commission began, on its own initiative, to examine the information regarding an alleged aid and, on 4 June, 25 June, 2 August and 23 September 2019, it requested the Netherlands authorities to submit to it additional information. The Kingdom of the Netherlands responded to the requests of the Commission on 13 June, 18 July, 30 August, 8 October, 29 November and 1 December 2019 and 10 March 2020, respectively. 5 In those letters, the Kingdom of the Netherlands reaffirmed that the compensation contemplated by the Law was strictly limited to damages caused by the prohibition to use coal for the production of electricity and that it did not constitute State aid within the meaning of Article 107(1) TFEU. 6 On 11 December 2019, the Kingdom of the Netherlands adopted the Law, which came into force on 20 December 2019. 7 There were five coal-fired power plants in the Netherlands when the Law was adopted, namely Amercentrale 9, Eemshaven A/B, Engie Maasvlakte, MPP3 and Hemweg 8 (‘Hemweg’). 8 According to Articles 3 and 3bis of the Law, the prohibition to use coal for the production of electricity shall be applied progressively, based on the profitability of each power plant, the use of biomass and the electrical efficiency. The complete prohibition of the use of coal for the production of electricity has been set for 1 January 2030 at the latest. 9 Four out of the five power plants benefited from a transitional period of 5 to 10 years to allow them to recover their investments, to adapt to another raw material or to prepare for closure. 10 Hemweg, which did not burn biomass, produced no renewable energy, and had the lowest efficiency of the five power plants, did not benefit from a transitional period. Pursuant to Article 3a of the Law, it should have stopped using coal by 1 January 2020. As that power plant could not be adapted to another raw material, it had to close at the end of 2019. 11 Article 4 of the Law provides for the possibility of granting compensation to a power plant which, compared with other power plants, would be disproportionately affected by the prohibition of the use of coal for the production of electricity. 12 Article 4 was adopted, according to the Kingdom of the Netherlands, because the prohibition of the use of coal for the production of electricity affects the right to property, within the meaning of Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and because of the requirements of the principle of equal treatment of individuals vis-à-vis financial burdens imposed by the State, the aim being, inter alia, to strike a fair balance between the general interest pursued by the State and the individual interest of the power plants concerned. 13 As Hemweg did not benefit from a transitional period, it was, according to the Netherlands Government, very disproportionately affected by the introduction of the prohibition of the use of coal for the production of electricity at very short notice. In order to strike a fair balance as required by the ECHR, the Netherlands authorities contacted Vattenfall NV, Hemweg’s operator, to obtain information in order to assess the extent of the damage and to determine the compensation due for early closure. 14 Following an analysis performed in cooperation with an audit firm, the Netherlands Minister of Economic Affairs and Climate Policy granted Vattenfall, in a decision dated 20 December 2019, compensation of EUR 52.5 million (‘the measure at issue’). 15 On 12 May 2020, the Commission adopted the contested decision, in terms of which it declared the measure at issue compatible with the internal market pursuant to Article 107(3)(c) TFEU. 16 In the contested decision, the Commission took the view, in paragraph 40, that the Law ‘impinge[d] on Vattenfall’s property rights, since it oblige[d] Hemweg to close prematurely, in order to reduce CO2 emissions in line with the public interest’. The Commission also took the view that ‘a national [Netherlands] court would grant a compensation to [Vattenfall]’. 17 As for the existence of State aid, the Commission found in paragraph 48 of the contested decision that, ‘on the basis of the information provided by the Dutch authorities, it c[ould] not be concluded with a sufficient degree of certainty that a right to a compensation of EUR 52.5 million exist[ed] in the present case’. The Commission deduced from this that it ‘c[ould] not be excluded that the measure confers State aid on the undertaking concerned’. 18 However, the Commission considered in paragraph 49 of the contested decision that ‘a definitive conclusion as to whether the measure provide[d] the operator with an advantage and thus constitute[d] State aid pursuant to Article 107(1) TFEU d[id] not have to be drawn because even if State aid were involved, [it] consider[ed] that the measure [wa]s compatible with the internal market’. Forms of order sought 19 The Kingdom of the Netherlands contends that the Court should: – annul the contested decision; – order the Commission to bear the costs of the proceedings. 20 The Commission contends that the Court should: – dismiss the action as inadmissible or as unfounded; – order the Kingdom of the Netherlands to bear the costs of the proceedings. Law Admissibility 21 In terms of its plea of inadmissibility, the Commission first recalls that, given that no rule of law of the European Union requires it to provide an express decision regarding the classification of the measure, it did not rule on the question of whether the measure at issue constituted State aid. 22 Subsequently, referring, first, to the order of 28 January 2004, Netherlands v Commission (C‑164/02, EU:C:2004:54), and, second, to the judgment of 8 September 2011, Commission v Netherlands (C‑279/08 P, EU:C:2011:551), the Commission draws the following two conclusions. First, when a Member State notifies the Commission of an aid scheme and does not dispute that it constitutes aid, it is not entitled to bring an action for annulment of the decision of the Commission declaring that scheme compatible with the internal market. Second, if the Member State expressly requests the Commission to find that the scheme does not constitute aid, but the latter concludes, on the contrary, that it constitutes an aid scheme compatible with the internal market, the Member State would be entitled to bring an action for annulment because that decision gives rise to legal effects, given that the aid scheme is subject to the constant supervision of the Commission. 23 However, according to the Commission, first, the Kingdom of the Netherlands never notified the Commission of the measure at issue, nor did it request it to find that it did not constitute aid. Second, the contested decision did not relate to an aid scheme but rather to the payment of a one-off compensation to a single undertaking, which had, incidentally, already been paid. 24 Finally, regarding the legal effects of the contested decision vis-à-vis Vattenfall, the Commission submits that the measure at issue, assuming that it does constitute aid, is existing aid, as it is individual aid which it authorised, within the meaning of Article 1(b)(ii) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9). For a period of at least 10 years, Vattenfall would not have to be concerned about the principal amount of the compensation granted and of any interest thereon being recovered under Articles 16 and 17 of Regulation 2015/1589, as those provisions only apply to unlawful aids, which the measure at issue is not, as the Commission declared it compatible with the internal market. 25 Consequently, the contested decision will not give rise to any binding legal effect for the Kingdom of the Netherlands. 26 The Kingdom of the Netherlands contests the Commission’s arguments. 27 According to settled case-law, the action for annulment, provided for under Article 263 TFEU, is available regarding all acts of the institutions, whatever their form, which are intended to produce binding legal effects (see judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 44 and the case-law cited). 28 In that regard, Article 263 TFEU draws a clear distinction between the right of EU institutions and Member States to bring an action for annulment and that of natural and legal persons, in that the second paragraph of that article gives all Member States the right to contest the legality of decisions of the Commission by means of an action for annulment, without having to establish any legal interest in bringing proceedings. Unlike natural and legal persons, a Member State need not therefore prove that an act of the Commission, which it is contesting, produces legal effects vis-à-vis that Member State in order for its action to be admissible. However, in order for an act of the Commission to be the subject of an action for annulment, it must be intended to produce binding legal effects (see, to that effect, order of 27 November 2001, Portugal v Commission, C‑208/99, EU:C:2001:638, paragraphs 22 to 24, and judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraphs 36 to 38), which must be ascertained by looking at its substance (see judgment of 22 June 2000, Netherlands v Commission, C‑147/96, EU:C:2000:335, paragraph 27 and the case-law cited). 29 The capacity of an act to produce binding legal effects and, therefore, be open to challenge by means of any action for annulment pursuant to Article 263 TFEU must be assessed in accordance with objective criteria, such as the contents of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (judgment of 25 October 2017, Slovakia v Commission, C‑593/15 P and C‑594/15 P, EU:C:2017:800, paragraph 47). 30 In respect of State aids, it has already been ruled that a decision based on Article 107(1) and (3) TFEU, which, while classifying a measure as State aid, declared it compatible with the internal market, must be regarded as a challengeable act in terms of Article 263 TFEU (see, to that effect, judgments of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 42; of 25 March 2015, Belgium v Commission, T‑538/11, EU:T:2015:188, paragraph 53; and of 28 January 2016, Austria v Commission, T‑427/12, not published, EU:T:2016:41, paragraph 36). 31 It is true that it must be observed that, in the present case, the contested decision does not rule on the existence of aid within the meaning of Article 107(1) TFEU, as also confirmed by the Commission at the hearing. It is apparent in paragraph 48 of the contested decision that the Commission did not rule out the possibility that the measure at issue grant State aid to Vattenfall. Nor did the Commission expressly state in paragraph 4 of that decision that that measure should be classified as State aid within the meaning of Article 107(1) TFEU, while at the same time ruling that that measure was compatible with Article 107(3) TFEU. 32 However, like a decision of the Commission classifying the measure at issue as State aid, while declaring it compatible with the internal market, the effect of the contested decision is that the measure at issue, which is only considered compatible with the internal market in terms of Article 107(3)(c) TFEU, is authorised by the Commission and may therefore be implemented in accordance with Article 108(3) thereof. 33 Therefore, the Commission, by its contested decision adopted on the basis of Article 4(3) of Regulation 2015/1589, decided to bring to an end the preliminary examination procedure which it had initiated and implicitly refused to open the formal investigation procedure contemplated in Article 108(2) TFEU (‘the formal investigation procedure’). The Commission has therefore adopted a definitive position regarding the compatibility of the measure at issue with the internal market, which produces binding legal effects (see, to that effect, judgment of 16 December 2010, Athinaïki Techniki v Commission, C‑362/09 P, EU:C:2010:783, paragraphs 65 and 66). 34 Accordingly, the present action must be declared admissible, without having to determine whether the binding legal effects produced by the contest decision are capable of affecting the interests of the Kingdom of the Netherlands. Substance 35 In support of its action, the Kingdom of the Netherlands puts forward five pleas in law, the first of which alleges infringement of Article 107(1) TFEU as to the existence of an advantage, the second misapplication of Article 107(1) TFEU as to the burden of proof, the third breach of the obligation to state reasons, the fourth lack of competence of the Commission to declare a measure compatible with the internal market under Article 107(3) TFEU, without first classifying it as aid, and the fifth breach of the principle of legal certainty. 36 The first three pleas in law are put forward on the assumption that the contested decision should be interpreted as necessarily implying that the measure at issue is aid. The other two pleas in law are directed against the contested decision in that it does not decide the question whether the measure at issue constitutes State aid. 37 However, in the present case, as noted in paragraph 31 above, in the contested decision, the Commission did not decide whether the measure at issue constituted aid within the meaning of Article 107(1) TFEU. Therefore, the fourth and fifth pleas in law must be examined together. 38 In that regard, first, the Kingdom of the Netherlands submits that it follows from the context of Article 107 TFEU that only State aid may be declared compatible with the internal market. 39 That reading is supported by Article 4(3) of Regulation 2015/1589, in terms of which the Commission may declare a measure compatible with the internal market, in so far as it falls within the scope of Article 107(1) TFEU. 40 However, the Commission did not establish that the measure at issue, which it declares compatible with the internal market, constituted aid within the meaning of Article 107(1) TFEU, and therefore fell within the scope of that provision. 41 The Kingdom of the Netherlands concludes that the Commission exceeded its powers. 42 Second, by deciding not to rule on whether the measure at issue should be classified as State aid, within the meaning of Article 107(1) TFEU, the Commission created a situation of legal uncertainty. According to the Kingdom of the Netherlands, the requirements of clarity and foreseeability arising from the principle of legal certainty are met only if the Commission expressly takes a decision on whether the measure at issue constitutes aid. 43 The Commission replies that neither Article 107(3) TFEU nor Article 4(3) of Regulation 2015/1589 provides that it cannot declare a measure compatible with the internal market without ruling definitively on the question of whether such measure constitutes aid. On the contrary, although the measure does not raise any doubts as to its compatibility, Article 4(3) of Regulation 2015/1589 requires it to determine that the measure is compatible with the internal market. Initiating the formal investigation procedure within the meaning of Article 108(2) TFEU, solely to decide whether a measure constitutes State aid, is contrary to the spirit of that provision. 44 That interpretation is confirmed, according to the Commission, by Article 4(4) of Regulation 2015/1589, in terms of which the Commission may only initiate the formal investigation procedure if it finds, following a preliminary examination, that the notified measure raises doubts as to its compatibility with the internal market. 45 In addition, Article 4(2) of Regulation 2015/1589 does not permit the Commission to decide that the measure at issue does not constitute aid if, after the preliminary examination, it did not draw such a conclusion. 46 The Commission explains that it may sometimes be more efficient and advantageous for the parties concerned if the Commission declares a measure compatible with the internal market without conducting a formal investigation pursuant to Article 4(4) of Regulation 2015/1589 to determine whether the measure constitutes aid. 47 Accordingly, in such a situation, by adopting the decision not to raise any objections against the measure that cannot easily be classified as aid, the Commission is applying the principle of sound administration. 48 The contested decision creates legal certainty for the Kingdom of the Netherlands and for Vattenfall, as it removes the uncertainty as to the legality of the aid, as to the potential initiation of the formal investigation procedure and as to the potential recovery of part of the compensation awarded to Vattenfall pursuant to the measure at issue. 49 In that regard, in the first place, it should be emphasised that the Commission adopted the contested decision based on Article 4(3) of Regulation 2015/1589 and concluded, in its operative part, that ‘the [measure at issue wa]s compatible with the internal market in accordance with Article 107(3)(c) [TFEU]’. 50 The Commission maintains that neither Article 107(3) TFEU nor Article 4(3) of Regulation 2015/1589 requires it to make a final ruling that a measure constitutes aid within the meaning of Article 107(1) TFEU before it can consider that this measure is compatible with the internal market. 51 It must be recalled that, according to Article 107(1) TFEU, save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources, in any form whatsoever, which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, to the extent that it affects trade between Member States, incompatible with the internal market. 52 Pursuant to Article 107(3)(c) TFEU, by way of a derogation from the prohibition laid down in Article 107(1) TFEU, ‘aid’ intended to facilitate the development of certain economic activities or of certain economic areas may be considered compatible with the internal market where such aid does not adversely affect trading conditions to an extent contrary to the common interest. 53 The use of the term ‘aid’ in Article 107(3) TFEU implies that the compatibility of a national measure with the internal market can only be assessed once that measure has been classified as aid. 54 In addition, according to settled case-law, where the Commission is unable to conclude, following an initial examination, that a State measure either is not ‘aid’ within the meaning of Article 107(1) TFEU or, if classified as aid, is compatible with the Treaty, or where that procedure has not enabled the Commission to overcome all the difficulties involved in assessing the compatibility of the measure under consideration, the Commission is under a duty to initiate the procedure contemplated in Article 108(2) TFEU, without having any discretion in that regard (see judgment of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 113 and the case-law cited). 55 It follows from the above that only a measure falling within the scope of Article 107(1) TFEU, being a measure classified as State aid, may be considered by the Commission as being compatible with the internal market. 56 Furthermore, that conclusion is supported by the relevant provisions of Regulation 2015/1589. 57 Article 4 of Regulation 2015/1589 provides that: ‘1. The Commission shall examine the notification as soon as it is received. Without prejudice to Article 10, the Commission shall take a decision pursuant to paragraphs 2, 3 or 4 of this Article. 2. Where the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision. 3. Where the Commission, after a preliminary examination, finds that no doubts are raised as to the compatibility with the internal market of a notified measure, in so far as it falls within the scope of Article 107(1) TFEU, it shall decide that the measure is compatible with the internal market … 4. Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the internal market of a notified measure, it shall decide to initiate proceedings pursuant to Article 108(2) TFEU … …’ 58 According to the Court of Justice’s case-law, Article 4 of Regulation 2015/1589 institutes a preliminary stage of examination of the aid measures, enabling the Commission to form a first opinion in relation to the measure examined. At the end of that preliminary stage, the Commission finds that the State measure in question either does not constitute ‘aid’ within the meaning of Article 107(1) TFEU or falls within the scope of that provision. In the latter case, it may be that the measure does not raise doubts as to its compatibility with the internal market; on the other hand, it is also possible that the measure may raise such doubts. If the Commission finds, following the preliminary examination, that the measure notified, in so far as it falls within the scope of Article 107(1) TFEU, does not raise any doubts as to its compatibility with the internal market, it shall adopt a decision not to raise objections under Article 4(3) of Regulation 2015/1589 (see, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 43 and 44). 59 Thus, Article 4 of Regulation 2015/1589, applicable in the present case pursuant to Article 15(1) of that regulation relating to decisions of the Commission in respect of unlawful aid, sets out an exhaustive list of the decisions which the Commission may adopt following the preliminary examination of the national measure at issue, which list does not include the possibility of adopting a decision declaring a national measure compatible with the internal market without the Commission having first ruled on the classification of that measure as State aid. In particular, Article 4(3) of Regulation 2015/1589 provides that the Commission may declare a measure compatible with the internal market, ‘in so far as it falls within the scope of Article 107(1) TFEU’. 60 However, in the present case, it is common ground that the Commission had doubts as to the classification of the measure at issue as aid, which doubts it confirmed at the hearing, such that, after and despite numerous discussions between the Kingdom of the Netherlands and its personnel during the administrative proceedings, it decided not to rule on that question in the contested decision, while at the same time concluding that the measure at issue was compatible with the internal market. 61 In view of all of the above, it is apparent that the Commission adopted a decision contrary to both Article 107(3) TFEU and Article 4(3) of Regulation 2015/1589. 62 Therefore, the Commission exceeded its powers when it considered, in the contested decision, that the measure at issue was compatible with the internal market, without first ruling on the question of whether such a measure constituted aid. 63 In the second place, it must be recalled that the principle of legal certainty, which forms part of the EU legal order, seeks to ensure that situations and legal relationships arising under the EU legal order remain foreseeable and requires that any act of the administration producing legal effects should be clear and precise, so that those concerned may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly (see judgment of 28 April 2021, Correira v EESC, T‑843/19, EU:T:2021:221, paragraph 47 and the case-law cited; also see, to that effect, judgment of 30 November 2009, France and France Télécom v Commission, T‑427/04 and T‑17/05, EU:T:2009:474, paragraph 300 and the case-law cited). 64 In the present case, the Commission did declare, in the contested decision, that the measure at issue was compatible with the internal market. However, that measure was not classified, although, as stated in paragraph 63 above, that is a necessary prerequisite for the examination of the compatibility of that measure with the internal market. 65 In addition, first, it is apparent from the Court’s case-law that, where the Commission has adopted, in relation to aid implemented in breach of Article 108(3) TFEU, a final decision ruling that that aid is compatible with the internal market pursuant to Article 107 TFEU, the national court must, in application of EU law, order the recipient of aid to pay interest in respect of the period of illegality of that aid (see, that effect, judgment of 12 February 2008, CELF and ministre de la Culture et de la Communication, C‑199/06, EU:C:2008:79, paragraphs 52 and 55). Thus, in the event that competitors of Vattenfall were to bring proceedings before the national courts on the lawfulness of the measure at issue and that the latter classified it as State aid within the meaning of Article 107(1) TFEU, Article 108(3) TFEU would then have been infringed due to the failure to notify the Commission of the measure at issue and the Kingdom of the Netherlands would be obliged to claim interest from Vattenfall in respect of the period of illegality. 66 Second, the lack of classification of the measure at issue has left the Kingdom of the Netherlands in an uncertain situation regarding the granting of new aid pursuant to the rules relating to overlapping aid, in application of the Guidelines on State aid for environmental protection and energy 2014-2020 (OJ 2014 C 200, p. 1; ‘the Guidelines’), and 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 [TFEU] (OJ 2014 L 187, p. 1). 67 Indeed, pursuant to Article 8 of that regulation, entitled ‘Cumulation’, the total amount of State aid for the aided activity, project or undertaking shall be taken into account. 68 Paragraph 81 of the Guidelines provides that aid may be awarded concurrently under several aid schemes or cumulated with ad hoc aid, provided that the total amount of State aid for an activity or project does not exceed the limits fixed by the aid ceilings laid down in those Guidelines. 69 Thus, the Kingdom of the Netherlands could be affected by the rules on cumulation in force, if it were to consider granting aid to Vattenfall to reuse the Hemweg site. 70 It therefore cannot be held that the contested decision enabled the Kingdom of the Netherlands, the addressee of the contested decision, to ascertain its rights and obligations and to act accordingly. 71 In those circumstances, it must be held that the Commission, by deciding not to rule on the question of whether the measure at issue should be classified as State aid within the meaning of Article 107(1) TFEU, breached the principle of legal uncertainty. 72 Taking into consideration all of the above, the fourth and fifth pleas must be upheld and, consequently, the contested decision must be annulled, without any need to rule on the other pleas put forward by the Kingdom of the Netherlands. Costs 73 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Kingdom of the Netherlands. On those grounds, THE GENERAL COURT (Seventh Chamber, Extended Composition) hereby: 1. Annuls Commission Decision C(2020) 2998 final of 12 May 2020 on State aid SA.54537 (2020/NN) – Netherlands, Prohibition of coal for the production of electricity in the Netherlands; 2. Orders the European Commission to bear the costs of the proceedings. da Silva Passos Valančius Reine Truchot Sampol Pucurull Delivered in open court in Luxembourg on 16 November 2022. [Signatures] * Language of the case: Dutch.