JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
12 September 2019 (*)
(State aid — Aid to Klaipėdos Nafta for the construction and management of an LNG terminal at the Klaipėda Seaport — Decision declaring the aid compatible with the internal market — Article 106(2) TFEU — Article 107(3)(c) TFEU — Decision not to raise any objections — Security of supply — Service of general economic interest)
In Case T‑417/16
Achemos Grupė UAB, established in Vilnius (Lithuania),
Achema AB, established in Jonava (Lithuania),
represented initially by R. Martens and C. Maczkovics, and subsequently by R. Martens and V. Ostrovskis, lawyers,
applicants,
v
European Commission, represented by É. Gippini Fournier, N. Kuplewatzky and L. Armati, acting as Agents,
defendant,
supported by
Republic of Lithuania, represented initially by D. Kriaučiūnas and R. Dzikovič, and subsequently by R. Dzikovič, acting as Agents,
and by
Klaipėdos Nafta AB, established in Klaipėda (Lithuania), represented by K. Kačerauskas and V. Vaitkutė Pavan, lawyers,
interveners,
APPLICATION pursuant to Article 263 TFEU for annulment of
Commission Decision C(2013) 7884 final of 20 November 2013, whereby State aid SA.36740 (2013/NN) granted by Lithuania to Klaipėdos Nafta was declared compatible with the internal market (OJ 2016, C 161, p. 1),
THE GENERAL COURT (Seventh Chamber),
composed of V. Tomljenović, President, A. Marcoulli and A. Kornezov (Rapporteur), Judges,
Registrar: E. Artemiou,
having regard to the written part of the procedure and further to the hearing on 20 March 2019,
gives the following
Judgment
Background to the dispute
1        The Parliament of the Republic of Lithuania, by Resolution X-1046 of 18 January 2007, approved the national energy strategy for 2008-2012 which highlighted the need to look into the possibility of building a liquefied natural gas terminal (‘the LNG terminal’) in order to ensure an alternative supply of natural gas in that Member State and thereby ensure the security of energy supply at national level.
2        On 21 July 2010, the Lithuanian Government, by decree, appointed Klaipėdos Nafta AB to develop a plan for constructing an LNG terminal and to carry out that construction (‘the Decree of 21 July 2010’). The Lithuanian State has a 72.3% shareholding in Klaipėdos Nafta.
3        On 30 September 2010, the Parliament of the Republic of Lithuania adopted a resolution in which it asked the Government to draw up a detailed development project for the LNG terminal in Lithuania and to provide for project finance from EU funds and private funds in addition to funds from the national budget.
4        In compliance with the resolution of the Lithuanian Parliament referred to in paragraph 3 above, the Lithuanian Government adopted two resolutions on 7 and 15 February 2012 by which it approved amendments to the national energy strategy of the Republic of Lithuania for 2008-2012, decided to develop the LNG terminal, appointed Klaipėdos Nafta as the undertaking responsible for developing the project and requested the Ministry for Energy to adopt all decisions required to ensure that Klaipėdos Nafta is provided with all necessary guarantees to finance the project, including a State guarantee.
5        On 22 June 2012, the LNG Terminal Law was passed, according to which the LNG terminal and its connection to the gas transmission system are to be recognised as facilities of strategic importance to national security, while the LNG terminal operator is to be recognised as a company of strategic importance to national security (‘the Law of 22 June 2012’). According to Article 4(1) of that law, the LNG terminal project must be implemented by a company in which the State holds shares conferring at least 2/3 of the voting rights.
6        The regulatory framework established by the Republic of Lithuania made provision for three main components for financing the LNG terminal:
–        First, Article 5(2) of the Law of 22 June 2012 creates a special levy for all users of the natural gas transmission system (‘the LNG supplement’). That supplement is collected by the transmission system operator and transferred to Klaipėdos Nafta once approved by the national regulatory authority (‘NRA’) in order to finance part of the costs of building the LNG terminal and the related infrastructure which could not be financed by other sources as well as the fixed costs of operating the terminal. Provision is made to collect the LNG supplement for a period of 55 years from the launch of the LNG terminal.
–        Secondly, Article 11 of the Law of 22 June 2012 imposes a requirement for certain companies supplying heat and electricity to purchase a minimal mandatory quota of gas imported through the LNG terminal (‘the purchase obligation’). All other consumers in Lithuania are free to choose or purchase natural gas (from the designated supplier, from other suppliers, at the natural gas exchange or imported directly through the LNG terminal). The purchase obligation will continue for 10 years and that period may be shortened if the development and integration of the Lithuanian natural gas market are sufficient to ensure a minimal level of purchases making it possible for the LNG terminal to work on a steady mode.
–        Thirdly, the financing of the construction of the LNG terminal infrastructure is covered by a State guarantee of 100% of the amount of loans granted by the European Investment Bank (EIB) and other loan providers for a total amount of approximately EUR 116 million against payment of a one-off fee of 0.1% on the amount of the loan concerned (‘the State guarantee’).
7        On 28 October 2013, the Republic of Lithuania notified the European Commission of the above measures. It submitted additional information to that institution on 29 October 2013.
8        On 20 November 2013, the Commission adopted Decision C(2013) 7884 final in which State Aid SA.36740 (2013/NN), granted by Lithuania to Klaipėdos Nafta, was declared compatible with the internal market (‘the contested decision’). The contested decision was published in the Official Journal of the European Union on 4 May 2016 (OJ 2016 C 161, p. 1).
9        In the contested decision, in the first place, the Commission considered that the three measures described in paragraph 6 above were State aid within the meaning of Article 107(1) TFEU.
10      In the second place, with regard to the legality of the aid measures, the Commission stated that the State guarantee, the purchase obligation and the LNG supplement, in so far as the latter was meant to cover the fixed costs of operating the LNG terminal, had still not created enforceable rights when the contested decision was adopted, so that those measures were lawful. On the other hand, since the LNG supplement had already been in force since 2013, in that it was meant to cover the investment costs which could not be covered by other sources, the Commission decided that that part of the aid measure in question was implemented in breach of Article 108(3) TFEU.
11      In the third place, with regard to the compatibility with the internal market of the three aid measures described in paragraph 6 above, the Commission considered, on the basis of Article 107(3)(c) TFEU, that the investment aid measures, that is to say, the State guarantee and the LNG supplement, in so far as the latter covered investment costs, were compatible with the internal market. As regards the operating aid measures, that is to say, the purchase obligation and the LNG supplement, in so far as the latter covered the fixed costs of operating the LNG terminal, the Commission concluded that they complied with its communication on the European Union framework for State aid in the form of public service compensation (2011) (OJ 2012 C 8, p. 15, ‘the SGEI Framework’) and therefore were compatible with the internal market, in accordance with Article 106(2) TFEU.
Procedure and forms of order sought
12      By application lodged at the Court Registry on 28 July 2016, the applicants, Achemos Grupė UAB and Achema AB, brought the present action.
13      On 28 November 2016, by a separate document, the Commission lodged a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.
14      On 16 January 2017, the applicants lodged their observations on the plea of inadmissibility at the Court Registry.
15      By order of 6 September 2017, the Court (Seventh Chamber) decided to reserve its decision on the plea of inadmissibility raised by the Commission for the final judgment.
16      On 19 October 2017, the Commission lodged its defence at the Court Registry.
17      By decisions of 30 October and of 8 December 2017, the President of the Seventh Chamber of the Court granted leave to the Republic of Lithuania and to Klaipėdos Nafta to intervene in support of the form of order sought by the Commission.
18      The applicants lodged a reply at the Court Registry on 24 January 2018.
19      On 5 and 7 February 2018, respectively, the Republic of Lithuania and Klaipėdos Nafta lodged statements in intervention.
20      On 12 March 2018, the Commission lodged a rejoinder at the Court Registry.
21      On 9 April 2018, the applicants lodged observations on the statements in intervention at the Court Registry.
22      Pursuant to Article 106(2) of the Rules of Procedure, the applicants submitted a reasoned request for an oral hearing on 17 May 2018.
23      On a proposal from the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral part of the procedure and, by way of a measure of organisation of procedure under Article 89 of the Rules of Procedure, put a number of questions to the Commission to be answered in writing. On 18 February 2019, the Commission replied to the questions put to it.
24      At the hearing held on 20 March 2019, the parties presented their oral arguments and answered the oral questions asked by the Court.
25      At the hearing, the Court invited the Commission, the Republic of Lithuania and Klaipėdos Nafta to present, within 2 weeks, written observations on Commission Decision C(2018) 7141 final of 31 October 2018 on State Aid SA. 44678 (2018/N) on the alteration to the aid granted for the LNG terminal in Lithuania (OJ 2019 C 14, p. 1, ‘the Commission’s decision of 31 October 2018’), which was relied on by the applicants for the first time at the hearing. The Commission and Klaipėdos Nafta lodged their observations on that statement on 2 and 3 April 2019 respectively.
26      The applicants claim that the Court should:
–        dismiss the plea of inadmissibility in its entirety;
–        annul the contested decision in its entirety;
–        order the Commission to pay the costs.
27      The Commission contends that the Court should:
–        dismiss the application as inadmissible;
–        dismiss the application on its merits;
–        order the applicants to pay the costs.
28      The Republic of Lithuania expresses its support for the form of order sought by the Commission that the action be dismissed as inadmissible or on its merits.
29      Klaipėdos Nafta contends that the Court should:
–        dismiss the application;
–        order the applicants to pay the costs which it and the Commission incurred.
Law
Admissibility
The action
30      In its plea of inadmissibility, the Commission argues that the applicants have neither a legal interest nor standing to bring proceedings against the contested decision.
31      Klaipėdos Nafta contests the admissibility of the action on the ground that it is out of time, inasmuch as the applicants did not lodge the application with the Court within the time limit of 2 months defined in the sixth paragraph of Article 263 TFEU, and, in its opinion, that time limit was due to run from the moment the applicants became aware of the contested decision and not from its subsequent publication in the Official Journal of the European Union.
32      It must be noted that the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on the merits without first ruling on its admissibility (judgments of 26 February 2002, Council v Boehringer,
C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52, and of 14 September 2015, Brouillard v Court of Justice, T‑420/13, not published, EU:T:2015:633, paragraph 18).
33      In the circumstances of the present case, the Court takes the view that, for reasons of procedural economy, it is appropriate to consider at the outset the merits of the action, without first ruling on its admissibility, since the action is, in any event and for the reasons set out below, unfounded.
Admissibility of the document submitted by the applicants at the hearing
34      At the hearing, the applicants relied on and submitted for the first time a document, in the present case the Commission’s decision of 31 October 2018, which in their opinion is relevant to the issue before the Court.
35      The Commission and Klaipėdos Nafta argue that the submission of the Commission’s decision of 13 October 2018 must be rejected as inadmissible on the ground that it is out of time.
36      In that regard, it should be borne in mind that Article 85(3) of the Rules of Procedure provides that ‘the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified.’
37      In the present case, it must be pointed out, first, that the Commission’s decision was adopted on 31 October 2018 and published in the Official Journal of the European Union on 11 January 2019, that is to say, after the close of the written phase of the procedure on 18 April 2018, so that the applicants could not have submitted it before the close of that phase. In accordance with the case-law, the Court allows the lodging of evidence offered after the rejoinder only in exceptional circumstances, that is, if the person offering the evidence was unable, before the end of the written procedure, to obtain possession of the evidence in question, as in the present case (see, to that effect, judgment of 5 March 2019, Pethke v EUIPO, T‑169/17, not published, EU:T:2019:135, paragraph 43 and the case-law cited).
38      Secondly, the evidence in question was submitted at the hearing of 20 March 2019, that is to say, before the close of the oral procedure within the of Article 85(3) of the Rules of Procedure.
39      For those reasons, it is appropriate to allow the production of the Commission’s decision of 31 October 2018, pursuant to Article 85(3) of the Rules of Procedure.
Substance
40      The applicants raise three pleas in law in support of their application. In their first plea, they claim, in essence, that the Commission failed to fulfil its obligation to initiate the formal investigation procedure under Article 108(2) TFEU. The second plea concerns investment aid measures and the issue whether the Commission correctly assessed their compatibility with the internal market for the purposes of Article 107(3)(c) TFEU. The third plea concerns operating aid measures and the issue whether the Commission correctly applied the SGEI Framework in order to declare the aid compatible with the internal market for the purposes of Article 106(2) TFEU.
First plea in law: infringement of the procedural rules contained in Article 108(2) TFEU and Article 4(4) of Regulation (EC) No 659/1999, and of the rules of sound administration
41      The applicants rely on an infringement of their procedural rights under Article 108(2) TFEU and Article 4(4) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 108 [TFEU] (OJ 1999 L 83, p. 1), on the ground that the Commission, in the contested decision, relied only on information provided by the Lithuanian authorities without undertaking the steps required to have a complete and unbiased overview of the relevant market in Lithuania.
42      In particular, first, the Commission failed to verify the existence of other investment projects in LNG terminals. It overlooked the existence of the project of Achemos Grupė for the construction of another LNG terminal in the Smelte Peninsula (Lithuania) to meet the natural gas needs of Achema. Thus, given that it is common knowledge that Achema is responsible for half of the total consumption of natural gas in Lithuania, the Commission should have gathered additional information from that entity. In addition, information on the intention of Achemos Grupė to have an LNG terminal built was available on the internet, even in English. In the contested decision, the Commission found, without however checking, that the lack of investments in energy infrastructure in Lithuania was due to the strong position of Gazprom and that there was therefore a market failure in the context of its examination under Article 106(2) TFEU.
43      Secondly, the applicants submit that the Commission could not merely accept the statements of the Lithuanian State on the need for an LNG terminal with a capacity of 4 billion cubic metres without ascertaining from other sources of independent information, such as the annual report of the NRA, the forecast for gas demand in Lithuania in the mid-term and, above all, without making enquiries directly with Achema about its forecasts in terms of gas consumption.
44      According to the applicants, those considerations demonstrate that there are serious difficulties which should have raised doubts with regard to the compatibility of the aid measures at issue and led the Commission to open the formal investigation procedure.
45      In the reply, the applicants add that the existence of serious difficulties has been demonstrated further by the fact that the Commission received a complaint from the Lithuanian Gas Association and that it also received a letter from them dated 27 September 2012. Moreover, by failing to inform the Commission of the existence of the project of Achemos Grupė for the construction of an LNG terminal, the Republic of Lithuania infringed the principle of sincere cooperation defined in Article 4(3) TEU. In those circumstances, the Commission could have avoided taking a decision on the basis of an insufficient and incomplete investigation by hearing the applicants during a formal examination procedure.
46      The Commission, the Republic of Lithuania and Klaipėdos Nafta dispute all of the applicants’ arguments.
47      It should be observed as a preliminary point that, according to the case-law, where the Commission is unable to reach a firm view, following an initial examination in the context of the procedure under Article 108(3) TFEU, that a State aid 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 provided for in Article 108(2) TFEU, and has no 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; judgment of 19 September 2018, HH Ferries and Others v Commission, T‑68/15, EU:C:2018:563, paragraph 60).
48      The notion of serious difficulties is an objective one (judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 31). The existence of such difficulties must be sought both in the circumstances in which the contested measure was adopted and in its content, in an objective manner, comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aid with the internal market (see judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 77 and the case-law cited). It follows that judicial review by the Court of the existence of serious difficulties will, by its nature, go beyond simple consideration of whether or not there has been a manifest error of assessment (see judgments of 27 September 2011, 3F v Commission, T‑30/03 RENV, EU:T:2011:534, paragraph 55 and the case-law cited, and of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 80 and the case-law cited). A decision adopted by the Commission without initiating the formal examination phase may be annulled on that ground alone, because of the failure to initiate the inter partes and detailed examination laid down in the Treaty, even if it has not been established that the Commission’s assessments as to substance were wrong in law or in fact (see, to that effect, judgment of 9 September 2010, British Aggregates and Others v Commission, T‑359/04, EU:T:2010:366, paragraph 58).
49      Again according to the case-law, the legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted (see judgment of
2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 91 and the case-law cited).
50      It is also apparent from the case-law that, if the examination carried out by the Commission during the preliminary examination procedure is insufficient or incomplete, this constitutes evidence of the existence of serious difficulties (see judgment of 17 March 2015, Pollmeier Massivholz v Commission, T‑89/09, EU:T:2015:153, paragraph 50 (not published) and the case-law cited).
51      The onus is on the applicants to prove the existence of serious difficulties, proof that can take the form of a consistent body of evidence (see judgment of 19 September 2018, HH Ferries and Others v Commission, T‑68/15, EU:T:2018:563, paragraph 63 and the case-law cited).
52      Finally, the Commission is required, in the interests of the sound administration of the fundamental rules of the TFEU relating to State aid, to conduct a diligent and impartial examination, so that it has at its disposal, when adopting the final decision, the most complete and reliable information possible for that purpose (judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 90), whilst bearing in mind the fact that the aim of the system of State aid control primarily rests on dialogue between the Commission and the Member States in which third parties have only a limited role to play (see, to that effect, judgment of 9 December 2014, Netherlands Maritime Technology Association v Commission, T‑140/13, not published, EU:T:2014:1029, paragraph 60).
53      In the present case, the applicants rely, in essence, on the insufficient or incomplete nature of the examination conducted by the Commission during the preliminary examination procedure. Thus, in the first place, the Commission failed to take into account the existence of an alternative investment project for an LNG terminal, that is to say, that of Achemos Grupė, when it based the contested decision on the premiss that an LNG terminal would be inconceivable without the State aid in question.
54      In that regard, first, it should be observed that, for the purposes of drawing up the contested decision, the Commission had at its disposal information submitted by the Republic of Lithuania in its notification of 28 October 2013, the additional information of 29 October 2013 and its own study on the gas market in the European Union submitted in the document ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Energy infrastructure priorities for 2020 and beyond — A Blueprint for an integrated energy network’ (COM/2010/0677 final) (see, inter alia, paragraphs 141 and 147 of the contested decision).
55      Secondly, the Commission examined the information presented in a complaint lodged by the Lithuanian Gas Association concerning the State aid measures covered by the contested decision (paragraphs 2 to 4 and point 2.13 of the contested decision). It should be noted in that regard that the members of that association are undertakings operating in the market for importing and distributing gas to resellers and end users, another association comprising 16 undertakings from the gas pipelines construction sector and scientific and educational establishments. As the applicants confirmed at the hearing, Achema was also a member of that association.
56      Thirdly, the Commission also had at its disposal the information contained in the letter which the applicants themselves sent to it on 27 September 2012 concerning the State aid measures in question.
57      In those circumstances, it must be stated that the Commission could validly consider that it had at its disposal, when it adopted the final decision, the most complete and reliable information possible for that purpose from different sources independent from one another pursuing different interests.
58      The applicants cannot validly criticise the Commission for not taking into consideration their project to construct an LNG terminal, given that at no time did they make this known to the Commission before the adoption of the contested decision. Although it is true that during the preliminary examination procedure the applicants do not have the right to submit observations, the fact remains that they did not at any point, spontaneously or by lodging a complaint, draw to the Commission’s attention the existence of their project to construct an LNG terminal, all the more so since, in the present case, they had taken the initiative of contacting the Commission concerning the aid measures at issue by letter of 27 September 2012, without, however, mentioning the existence of their project.
59      Nor is there any dispute that the complaint lodged by the Lithuanian Gas Association did not mention the Achemos Grupė project. That omission is all the more important since that association brings together a number of participants in the relevant market, including Achema itself, so that the Commission could legitimately consider that it also had at its disposal relevant information from parties opposed to the aid measures at issue.
60      In those circumstances, the Commission cannot be criticised for failing to take into account matters of fact or of law which could have been submitted to it during the administrative procedure but which were not, since it is under no obligation to consider, of its own motion and on the basis of prediction, what information might have been submitted to it (see judgment of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 140 and the case-law cited).
61      In the second place, with regard to the allegedly incomplete or insufficient nature of the Commission’s examination of the capacity of the LNG terminal, it should be noted that, in paragraph 72 of the contested decision, the Commission found, on the basis of a feasibility study presented by the Lithuanian authorities, that the optimal capacity for ensuring security of supply is 11 million cubic metres per day, or 4 billion cubic metres per year. According to the applicants, that capacity is twice as large as the annual consumption in Lithuania.
62      That argument is based on a partial reading of the contested decision. Although it is true that, in paragraphs 70 to 73 of the contested decision, the Commission stated that the demand for natural gas from priority consumers in Lithuania, that is to say, domestic consumers, heat producers and industries using natural gas in their manufacturing processes, was 0.9 to 1.5 billion cubic metres per year, it also stated in the same paragraphs that monthly consumption varied significantly, in that consumption for the winter months was up to five times greater than that for the summer months. Thus, during the winter months, a regasification capacity of 11 million cubic metres per day combined with the gas stored in the Inčukalns depot in Latvia would be able to ensure basic demand in Lithuania independently of Gazprom. The need for a daily capacity of 11 million cubic metres corresponds to a capacity of 4 billion cubic metres annually. In that regard, paragraphs 140, 141 and 155 of the contested decision explain, on the basis of concrete data, that the LNG terminal would be able to satisfy daily basic demand in winter.
63      The applicants do not challenge the reliability of the feasibility study on which that examination was based. Therefore, the Commission could consider that it had at its disposal sufficient information, without necessarily having to obtain further information from the NRA or Achema, as the applicants suggest.
64      In the third place, contrary to what the applicants claim, the fact that the Commission was in receipt of a complaint (see paragraph 55 above) and received the applicants’ observations in their letter of 27 September 2012 does not establish, in the present case, the existence of serious difficulties with regard to the compatibility of the aid measures at issue with the internal market. Even though complaints submitted by third parties may constitute indications of the existence of serious difficulties, their relevance very much depends on the evidence contained in those complaints and not on the mere fact that observations have been submitted (judgment of 9 December 2014,
Netherlands Maritime Technology Association v Commission, T‑140/13, not published, EU:T:2014:1029, paragraph 58).
65      Finally, with regard to the applicants’ claim that the Lithuanian authorities infringed Article 4(3) TEU by failing to inform the Commission of the Achemos Grupė project, suffice it to state that the purpose of an annulment application on the basis of Article 263 TFEU is not to establish the possible existence of a failure on the part of a Member State to meet its obligations under the Treaty. This argument is therefore irrelevant.
66      In the light of the foregoing, the first plea in law must be rejected.
Second plea in law: infringement of Article 107(3)(c) TFEU
67      The applicants consider that the Commission infringed Article 107(3)(c) TFEU in so far as it wrongly assessed the criteria leading to the conclusion, in accordance with the case-law, that the State aid at issue was compatible with the internal market. More precisely, they dispute the conclusions contained in the contested decision that the aid measures in question are needed to attain the objective of common interest relied on of ensuring security of the supply of gas in Lithuania (first part), have an incentive effect (second part) and are proportionate (third part).
–       First part concerning the need for the aid measures
68      It is appropriate to refer, foremost, to the settled case-law according to which the Commission may declare aid compatible with the internal market for the purposes of Article 107(3) TFEU only if it can establish that the aid contributes to the attainment of one of the objectives referred to in that provision, something which, under normal market conditions, a recipient undertaking would not achieve by using its own resources. In other words, in order for aid to benefit from one of the derogations contained in Article 107(3) TFEU, it must not only comply with one of the objectives set out in Article 107(3)(a), (b), (c) or (d) TFEU, but it must also be necessary for the attainment of those objectives (judgments of 7 June 2001, Agrana Zucker und Stärke v Commission, T‑187/99, EU:T:2001:149, paragraph 74, and of 13 September 2013, Fri-El Acerra v Commission, T‑551/10, not published, EU:T:2013:430, paragraph 49; see also, to that effect, judgment of 17 September 1980, Philip Morris Holland v Commission, 730/79, EU:C:1980:209, paragraph 17). Indeed, that aid must induce the recipient to act in a manner which assists attainment of those objectives (judgment of 14 May 2002, Graphischer Maschinenbau v Commission, T‑126/99, EU:T:2002:116, paragraph 34).
69      On the other hand, aid which improves the financial situation of the recipient undertaking without being necessary for the attainment of the objectives specified in Article 107(3) TFEU cannot be considered to be compatible with the internal market (judgments of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 68; of 14 January 2009, Kronoply v Commission, T‑162/06, EU:T:2009:2, paragraph 65, and of 8 July 2010, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, T‑396/08, not published, EU:T:2010:297, paragraph 47).
70      Finally, while the existence of a market failure may be a relevant factor for declaring State aid compatible with the internal market, the absence of market failure does not necessarily mean that the conditions laid down in Article 107(3)(c) TFEU are not satisfied (judgments of 9 June 2016, Magic Mountain Kletterhallen and Others v Commission, T‑162/13, not published, EU:T:2016:341, paragraphs 78 and 79, and of 18 January 2017, Andersen v Commission, T‑92/11 RENV, not published, EU:T:2017:14, paragraph 69). For example, State intervention may be considered to be necessary for the purposes of that provision where market forces are not capable by themselves of ensuring that the public interest objective of the Member State is achieved in sufficient time, even if, as such, that market cannot be considered to be failing (judgment of 12 July 2018, Austria v Commission, T‑356/15, under appeal, EU:T:2018:439, paragraph 151).
71      In the present case, it is common ground that the aid measures at issue pursued a legitimate objective of common interest, that is to say, ensuring security of gas supply in Lithuania, as was found in paragraph 139 of the contested decision. In that regard, the Commission considered that the aid measures were necessary and appropriate for attaining that objective given that the market in Lithuania would not have made it possible, without State support, to develop and finance a project capable of ensuring security of supply, irrespective of the fact that gas prices in Lithuania are among the highest in the European Union (paragraph 148 of the contested decision). According to the Commission, that lack of interest in investing in alternative energy infrastructure is mainly due to the particular situation in the Lithuanian gas market, dominated as it is by a single supplier, Gazprom, which enjoys a commercial margin sufficient to enable it to undercut LNG prices. For those reasons, in paragraphs 149 to 153 of the contested decision, the Commission took the view that, without the LNG supplement and the purchase obligation, the LNG terminal would be neither competitive, nor viable.
72      First, the applicants dispute the finding that there is no interest in investing in alternative infrastructure, giving the example of their own LNG terminal. That argument overlaps with the one rejected as part of the first plea in law and must be rejected for the reasons set out in paragraphs 54 to 60 above.
73      It should be added that, according to the applicants’ own submissions, their LNG terminal was intended to cover only the gas needs of Achema. Such a project clearly does not meet the objective of security of supply for all Lithuanian consumers pursued by the aid measures at issue, so that the existence of such a project, if proved, is not such as to call into question the need for the aid measures in question.
74      Secondly, the applicants contend that the lack of interest in investing in the Lithuanian gas infrastructure is not due to fear of price competition with the dominant supplier, Gazprom, but to other causes, such as the lack of separation between the transmission system operator and the gas suppliers or producers, in breach of Article 9 of
Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94).
75      That argument, however, is not sufficiently substantiated. In the absence of any specific evidence capable of supporting the applicants’ submissions, suffice it to state that, although the lack of separation between the operator of the gas transmission system and the gas suppliers or producers, if proved, could potentially be one of the causes of the failure in the Lithuanian gas market, nothing leads to the conclusion that any measure intended to introduce such a separation would be likely to resolve the problem of the single source of gas supply in Lithuania, given that that separation does not purport either to diversify the supply sources or provide security of supply.
76      Thirdly, the applicants dispute paragraphs 155 and 156 of the contested decision in that the Commission wrongly took the view that the aid measures at issue were appropriate and necessary to enable the Republic of Lithuania to satisfy the ‘N-1’ requirement by 3 December 2014 at the latest, in accordance with Article 6(1) of Regulation (EU) No 994/2010 of the European Parliament and of the Council of 20 October 2010 concerning measures to safeguard security of gas supply and repealing Council Directive 2004/67/EC (OJ 2010 L 295, p. 1), and to provide a short-term solution in view of the expiry in 2015 of the long-term contract concluded with the only gas supplier, Gazprom. According to the applicants, legal obligations or upcoming commercial negotiations cannot justify the grant of aid measures. The Commission did not examine whether there were other instruments better targeted to achieve the objective pursued which involve less aid.
77      However, that argument is based, in part, on a misreading of the contested decision. In paragraph 155 of the contested decision, the Commission examined a number of alternative measures, such as increasing the capacity of the interconnector between Lithuania and Latvia, increasing storage capacity in Latvia, building a storage facility in Lithuania and putting in place an interconnector between the gas networks of Poland and those of Lithuania, planned for 2018-2020, but concluded that none of them provided Lithuania with the same degree of security of supply. The applicants are therefore wrong to maintain that the Commission did not examine whether there were other types of investments capable of ensuring the same level of security of supply.
78      In addition, contrary to what the applicants argue, the time constraints faced by the Republic of Lithuania, resulting, first, from the requirement to implement the ‘N-1’ rule before 3 December 2014, as required by Article 6 of Regulation No 994/2010, and, secondly, from the expiry in 2015 of the long-term supply contract concluded with Gazprom, are considerations which underscore the need for the aid measures at issue and the timetable for their implementation.
79      Fourthly, the applicants submit that the Commission should have examined, for example, whether any change in the Lithuanian policy on the regulation of tariffs for the use of gas infrastructure could have attracted investments at a lower cost.
Given that the tariffs for the use of gas infrastructure in Lithuania are regulated through a price-cap methodology, that methodology, according to the applicants, is an efficient way of containing the operator’s costs, but would have the disadvantage of reducing investment. In that regard, the applicants refer to the Guidelines on State aid for environmental protection and energy 2014-2020 (OJ 2014 C 200, p. 1). Another measure involving less aid would be to authorise the applicants to build an LNG terminal.
80      In that regard, it should be observed that the change in the tariff policy for the use of gas infrastructure in Lithuania, recommended by the applicants with a view to attracting investment, would in fact result in a further increase in the already very high prices being charged to consumers, without, however, providing security of supply. The applicants do not explain why such a tariff change (increase) would attract investments in alternative gas sources in Lithuania, given that the already very high prices of gas, considerably higher than in other Member States, did not succeed in doing so, still less how such a tariff change would resolve the problem of the single supply source.
81      With regard to the references made to the guidelines mentioned in paragraph 79 above, suffice it to state, as is moreover accepted by the applicants, that those guidelines were not applicable ratione temporis when the contested decision was adopted.
82      Finally, with regard to the existence of another measure entailing less aid and consisting of authorising the applicants to build their own LNG terminal, it should be stated that such a measure is not capable of attaining the public interest objective at issue for the reasons already set out in paragraph 73 above.
83      The first part of the second plea in law must, therefore, be rejected as unfounded.
–       Second part concerning the incentive effect of the aid measures
84      In the context of Article 107(3)(c) TFEU, in order to be compatible with the internal market, the planned aid must have an incentive effect. To that end, it must be demonstrated that, in the absence of the planned aid, the investment intended to implement the project at issue would not take place. If, on the other hand, it appears that that investment would take place even without the planned aid, the conclusion must be that the aid serves merely to improve the financial situation of the recipient undertaking, without, however, meeting the requirement in Article 107(3)(c) TFEU that it is necessary for the development of certain activities (see judgment of 13 December 2017, Greece v Commission, T‑314/15, not published, EU:T:2017:903, paragraph 182 and the case-law cited).
85      In accordance with the case-law, a finding that an aid measure is not necessary can arise in particular from the fact that the aid project has already been started, or even completed, by the undertaking concerned prior to the application for aid being submitted to the competent authorities. In such a case, the aid concerned cannot operate as an incentive (see judgment of 13 December 2017, Greece v Commission, T‑314/15, not published, EU:T:2017:903, paragraph 181 and the case-law cited).
86      In the present case, the applicants dispute the Commission’s conclusion that the State aid measures at issue had an incentive effect, on the ground that the recipient of the aid was required, in particular under the Decree of 21 July 2010, to implement the LNG terminal project, which demonstrates that the aid at issue did not have an incentive effect. In addition, the Resolution of the Lithuanian Parliament of 30 September 2010 was adopted only after Klaipėdos Nafta had been legally obliged to implement the project at issue by the Decree of 21 July 2010, the wording of which is clearly imperative. According to the applicants, the Commissions’ decision-making practice confirms that approach, as is demonstrated by its Decision of 16 April 2013 on State aid SA.34938 (2012/N) — Poland — Aid to increase the capacity of PGNiG’s gas storage facility in Husow (OJ 2013 C 173, p. 1).
87      The applicants’ arguments are thus based on the premiss that, where the recipient of the aid is legally required to implement the project covered by the aid measure, that measure does not have incentive effect.
88      That premiss is, however, incorrect. There is nothing in the file, nor do the applicants even contend, that Klaipėdos Nafta had already started to implement the project at issue or, at the very least, that it had the intention of doing so, irrespective of the aid measures at issue.
89      On the contrary, it is apparent from paragraph 165 of the contested decision that the construction of the terminal did not commence until after the Lithuanian State undertook to support the project financially.
90      It is apparent from the file that the obligation for Klaipėdos Nafta to implement the LNG terminal project went hand in hand with the aid measures that were the subject matter of the contested decision. A reading of the entire national legal framework, summarised in paragraphs 1 to 6 above, shows that the aid measures at issue amounted to a condition sine qua non for implementation of the project.
91      Furthermore, in paragraphs 158 to 163 of the contested decision, the Commission considered that, without the aid in question, the project would not generate a positive rate of return, thereby making it unattractive to investors and that therefore the aid measures created an incentive effect for implementing the project.
92      Thus, the fact that the obligation to implement the project was legally imposed on the recipient of the State aid concerned does not in any way signify that the aid measures at issue lack incentive effect.
93      Finally, the Commission’s decision of 16 April 2013 referred to in paragraph 86 above, cited by the applicants, does not call that conclusion into question. Although, in that case, the Commission based the existence of an incentive effect on the absence of any legal obligation to implement the project at issue, it is apparent from the foregoing considerations that the existence of such an obligation does not in itself remove the incentive effect of the measure, since it is common ground that the recipient was not going to implement the project at issue without the contested aid measures.
94      It follows that the second part of the second plea in law must be rejected as unfounded.
–       Third part concerning the proportional nature of the aid
95      According to the case-law, in order to be capable of being declared compatible with the internal market pursuant to Article 107(3)(c) TFEU, aid must be aimed at the development of an activity that constitutes a public interest objective and must be appropriate, necessary and not disproportionate (see, to that effect, judgment of 15 June 2010, Mediaset v Commission, T‑177/07, EU:T:2010:233, paragraph 125).
96      In the present case, the applicants dispute the conclusion reached by the Commission in paragraph 178 of the contested decision that the State aid at issue is limited to the minimum necessary and overall is proportionate. In their opinion, the capacity of the terminal, that is to say, 4 billion cubic metres per year, is much higher than the total amount of Lithuania’s gas needs which was due to decrease gradually from 3.26 billion cubic metres in 2012 to 2.5 billion cubic metres in 2016. Furthermore, since the Commission, in the contested decision, limited its analysis to the Lithuanian market, it cannot, in the present proceedings, argue that the size of the LNG terminal must be assessed by reference to the size of the entire Baltic region.
97      The Commission contends, inter alia, that the capacity of the LNG terminal ‘is not … part’ of the proportionality assessment of the State aid in question, that, when it assessed the State aid at issue, it could rely only on data relating to past gas demand and start from the premiss that those levels would be repeated in the future, and that the capacity of the LNG terminal should be assessed by taking into consideration the markets of the other Baltic countries.
98      In the first place, the Commission’s argument that the capacity of the LNG terminal ‘is not … part’ of the proportionality assessment of the State aid in question must be rejected. The capacity of that terminal is directly linked to the amount of the aid. The amount of both the investment and operational aid depends, in part, on the capacity of the terminal, given that its size, first, determines the amount and the parameters of the investment, and therefore its cost, and secondly, affects its operational costs, since any unused overcapacity is likely to generate additional costs.
99      In the second place, the Commission’s argument that, when it assessed the State aid at issue, it could rely only on data relating to the past gas demand in Lithuania, by anticipating that the historical levels would be repeated in the future, must be rejected. With regard to aid measures which are to be applied for 10 years (for the purchase obligation) and 55 years (for the LNG supplement), the Commission cannot, as a rule, overlook the forecasts concerning consumption trends in Lithuania during the period when those measures will be applied.
100    In the third place, the Commission’s argument that the capacity of the LNG terminal should be assessed taking into consideration the markets of the other Baltic countries, must be rejected, given that, in the contested decision, the Commission did not base its examination of the capacity of the LNG terminal on that ground (paragraphs 167 to 178 of the contested decision). The Commission cannot supplement the reasoning of the contested decision during the proceedings (see, to that effect, judgment of 24 May 2007, Duales System Deutschland v Commission, T‑289/01, EU:T:2007:155, paragraph 132).
101    That being so, the Commission did not err in considering that the capacity of the LNG terminal did not go beyond what was necessary to attain the general interest objective of ensuring security of supply in Lithuania.
102    The Commission rightly considered in paragraph 72 of the contested decision that the capacity of the LNG terminal had to ensure basic demand in Lithuania during the peaks associated with the winter months in the event of a disruption of supply. The applicants do not dispute the fact that, during those months, a daily capacity of 11 million cubic metres is necessary, which corresponds to the LNG terminal’s capacity of 4 billion cubic metres per year.
103    Nor do the applicants dispute the fact, referred to in paragraph 73 of the contested decision, that the storage capacity of the LNG terminal will ensure an uninterrupted supply of gas for the most vulnerable consumers for a period of 14 to 30 days.
104    With regard to the argument that a downward trend has been predicted for demand in Lithuania, it should be observed, as Klaipėdos Nafta did, that the study relating to the Achemos Grupė project, submitted by the applicants in these proceedings as an annex to their observations on the Commission’s plea of inadmissibility and by Klaipėdos Nafta as an annex to the statement in intervention (see, inter alia, pages 37 to 39 of Annex S.1), states that, although consumption in natural gas in Lithuania may in fact fall until 2017-2020 to 3.1-3.3 billion cubic metres per year, it is expected to recover after 2020, and may reach a maximum of 5.1 billion cubic metres per year. According to that study, the capacity of the LNG terminal should thus be calculated on the basis of the assumption that the annual demand for natural gas will be 4.22 billion cubic metres. Therefore the applicants have not managed to demonstrate that the capacity of the terminal is disproportionate compared to the likely prediction for demand trends in Lithuania.
105    In any event, even if the demand for gas in Lithuania falls in the future, the fact remains that the Commission was entitled to take the view that the capacity of the LNG terminal was justified by the scale of the demand existing at the time it was put into operation. Otherwise, the Member State concerned would have been required to opt for a capacity which does not meet its current needs, solely on the ground that the demand may potentially fall in the future.
106    Therefore, the third part of the second plea in law must be rejected as unfounded.
107    Consequently, the second plea in law must be dismissed in its entirety.
Third plea in law: infringement of Article 106(2) TFEU, of the SGEI Framework, of the general principles of equal treatment and of protection of legitimate expectations, and of the public procurement rules laid down in Directive 2004/18/EC
108    That plea in law is divided into three parts which it is appropriate to examine separately.
–       First part concerning the entrustment period
109    It should be stated at the outset that the applicants do not dispute the fact that operating the LNG terminal is a service of general economic interest (SGEI) for the purposes of Article 106(2) TFEU.
110    According to the case-law, public service compensation not fulfilling the conditions laid down in the judgment of 24 July 2003 in Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) but otherwise meeting the conditions laid down in Article 107(1) TFEU to be classified as State aid may nevertheless be declared compatible with the internal market, in particular under Article 106(2) TFEU (see judgment of 6 April 2017, Saremar v Commission, T‑220/14, EU:T:2017:267, paragraph 131 (not published) and the case-law cited).
111    It should also be observed that, under Article 106(2) TFEU, the undertakings entrusted with the operation of SGEIs are to be subject to the rules on competition in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them, subject to the proviso, however, that the development of trade must not be affected to such an extent as would be contrary to the interests of the Union (see judgment of 6 April 2017, Saremar v Commission, T‑220/14, EU:T:2017:267, paragraph 132 (not published) and the case-law cited).
112    In the absence of EU harmonised rules governing the matter, the Commission is not entitled to rule on the scope of the public service tasks assigned to the public operator, in particular the level of costs linked to that service, or the expediency of the political choices made in that regard by the national authorities, or on the economic efficiency of the public operator
(judgment of 6 April 2017, Saremar v Commission, T‑220/14, EU:T:2017:267, paragraph 133 (not published)).
113    However, the broad discretion which the national authorities are recognised as having is not unlimited. In particular, in the application of Article 106(2) TFEU, that broad discretion must not prevent the Commission from verifying that the derogation from the prohibition on State aid provided for in that provision may be granted (judgment of 6 April 2017, Saremar v Commission, T‑220/14, EU:T:2017:267, paragraph 134 (not published)).
114    Having recalled that case-law, it must be observed that, according to paragraph 17 of the SGEI Framework, ‘the duration of the period of entrustment [for the provision of the SGEI] should be justified by reference to objective criteria such as the need to amortise non-transferable fixed assets’ and that ‘in principle, the duration of the period of entrustment should not exceed the period required for the depreciation of the most significant assets required to provide the SGEI’.
115    First, the applicants claim that the Commission infringed paragraph 17 of the SGEI Framework by wrongly agreeing, in paragraph 221 of the contested decision, that the SGEI period of entrustment is equal to the ‘lifetime’ of the LNG terminal, which corresponds to the ‘lifetime’ of the pipeline connecting the terminal to the gas transmission system, that is to say, 55 years, instead of relying on the depreciation period of the pipeline.
116    It should be observed in that respect, as the Commission did, that that argument is based on a partial reading of the contested decision. In paragraph 60 of the contested decision, the Commission clearly indicated that the period of 55 years during which the LNG supplement will be imposed corresponds to the period of ‘depreciation’ of the pipelines connecting the terminal to the gas network, as defined by the NRA. Although it is true that, in the first sentence of paragraph 221 of the contested decision, the Commission states that the period of entrustment corresponds to the ‘lifetime’ of the LNG terminal and its constituent elements, it immediately concludes, in the second and third sentences of that paragraph, that that period corresponds to the ‘depreciation period’ of that pipeline, being the period of depreciation which the NRA takes into account for pipelines.
117    It follows that, despite the use of the term ‘lifetime’ in the first sentence of paragraph 221 of the contested decision, the Commission in fact took into account the depreciation period of the infrastructure at issue, in accordance with paragraph 17 of the SGEI Framework. That conclusion is also confirmed by the references to the depreciation periods determined in a decision of the NRA, referred to in footnote 20 of the contested decision.
118    Secondly, according to the applicants, the contested decision does not make it clear why the period of entrustment should correspond to the lifetime of the pipeline connecting the LNG terminal to the gas network, given that the present case concerns a larger and more complex project, or why that pipeline should be regarded as one of the most significant assets required to provide the SGEI, within the meaning of paragraph 17 of the SGEI Framework. According to the applicants, the asset having the longest depreciation period was chosen with a view to justifying the longest possible period of entrustment.
119    First of all, with regard to the issue whether the pipeline is a significant asset required to provide the SGEI, within the meaning of paragraph 17 of the SGEI Framework, the Commission found, in paragraph 221 of the contested decision, that that was the case,
given that the pipeline was one of the most important assets needed to implement the SGEI, because, without the pipeline, it would not be possible to supply gas through the LNG terminal. The applicants do not challenge that finding.
120    Nevertheless, it must be stated that paragraph 17 of the SGEI Framework refers to the ‘most significant assets required’, thus in the plural, without laying down more precise rules where the project at issue, serving as the basis for the SGEI, is composed of a number of ‘significant assets required to provide the SGEI’ with different depreciation periods, as in the present case. In paragraph 60 of the contested decision, the Commission identified the different depreciation periods of the other components of the infrastructure of the LNG terminal, that is to say, machinery and equipment (13 years), metering station (18 years), jetty (2 years) and the floating storage and regasification unit (30 years).
121    Insofar as all of those elements, or at least some of them, may be regarded as ‘significant assets required’ to provide the SGEI, within the meaning of paragraph 17 of the SGEI Framework, as with the pipeline, the question arises as to which period of entrustment should be used.
122    In the absence of further details in that regard in the wording of paragraph 17 of the SGEI Framework, it is necessary to interpret it in the light of its objective which is to avoid any overcompensation. According to paragraph 16(e) of that framework, the entrustment act which a Member State must adopt in order to ensure that the SGEI at issue complies with Article 106(2) TFEU, must make provision, inter alia, for ways of avoiding any overcompensation.
123    It must therefore be concluded that the duration of the period of entrustment must correspond to the depreciation period of one of the most significant assets required to provide the SGEI, provided that the resulting remuneration does not lead to any overcompensation.
124    In the present case, the applicants do not advance any argument to demonstrate that the period of entrustment of 55 years would lead to any overcompensation in favour of Klaipėdos Nafta.
125    Furthermore, it must be stated that the amount of the LNG supplement takes into consideration the different depreciation periods referred to in paragraph 120 above. As the depreciation period of the other assets gradually expires during the period of entrustment, the relevant depreciation costs will progressively decrease over time. That decrease will be carried forward to the calculation of the amount of the LNG supplement, as is apparent from paragraph 60 and footnote 18 of the contested decision and as was confirmed by the Commission in its reply to a question put to it by the Court at the hearing.
126    Finally, it must be stated that the applicants do not rely on any separate argument concerning the alleged infringement of the ‘general principles of [EU] law such as equal treatment and the protection of legitimate expectations’. Therefore that complaint does not require a separate reply from the Court.
127    In the light of the foregoing, the first part of the third plea in law must be rejected as unfounded.
–       Second part alleging an infringement of Article 14 of Directive 2004/18
128    The applicants claim that the award of the LNG project directly to Klaipėdos Nafta could not be exempt from public procurement rules for reasons relating to the protection of the essential interests of the State within the meaning of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114). In the present case, there are alternative solutions that are less restrictive in nature than a direct award, such as award criteria, the imposition of duties with possible criminal sanctions, security requirements in the contract and consideration of the ability to comply with certain requirements as a matter of technical capacity. The applicants themselves could have provided the requested service and satisfied the security requirements necessary for implementation of the project.
129    In their reply, the applicants state that the derogation under Article 14 of Directive 2004/18, like the analogous derogations in the provisions of the TFEU, must be applied only if it is necessary, it is appropriate for attaining the objective pursued and it is proportionate, which was not demonstrated in the present case.
130    The Commission, the Republic of Lithuania and Klaipėdos Nafta dispute all of the applicants’ arguments.
131    According to paragraph 9 of the SGEI Framework:
‘Aid will be considered compatible with the internal market on the basis of Article 106(2) TFEU only where the responsible authority, when entrusting the provision of the service to the undertaking in question, has complied or commits to comply with the applicable Union rules in the area of public procurement. This includes any requirements of transparency, equal treatment and non-discrimination resulting directly from the Treaty and, where applicable, secondary Union law. Aid that does not comply with such rules and requirements is considered to affect the development of trade to an extent that would be contrary to the interests of the Union within the meaning of Article 106(2) TFEU.’
132    In the present case, the Commission considered, in paragraph 230 of the contested decision that the award of the tasks related to the operation of the LNG terminal to Klaipėdos Nafta could be classified either as a public service contract, coming within the scope of Directive 2004/18, or as a concession. Thus, regardless of its classification as a public contract or a concession, the award at issue must, in principle, be implemented following a transparent competitive procedure, as provided for in Directive 2004/18 or on the basis of the principles of the TFEU. Therefore according to the Commission, the justification relied upon by the Republic of Lithuania for exceptionally making a direct award applies in the same way under both these award frameworks.
133    Given that the applicants dispute the direct award at issue on the basis of
Article 14 of Directive 2004/18, it should be observed that, under that provision, the directive ‘shall not apply to public contracts when they are declared to be secret, when their performance must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, or when the protection of the essential interests of that Member State so requires.’
134    The Court has previously held that measures adopted by the Member States in connection with the legitimate requirements of national interest are not excluded in their entirety from the application of EU law solely because they are taken, inter alia, in the interests of public security (judgment of 20 March 2018, Commission v Austria (State Printing Office), C‑187/16, EU:C:2018:194, paragraph 76).
135    Moreover, those derogations must, in accordance with the settled case-law relating to derogations from fundamental freedoms, be interpreted strictly (see judgment of 20 March 2018, Commission v Austria (State Printing Office), C‑187/16, EU:C:2018:194, paragraph 77 and the case-law cited).
136    Furthermore, even though Article 14 of Directive 2004/18 affords the Member States discretion in deciding the measures considered to be necessary for the protection of their essential security interests, that article cannot, however, be construed as conferring on Member States the power to derogate from the provisions of the TFEU simply by invoking those interests. A Member State which wishes to avail itself of those derogations must show that such derogation is necessary in order to protect its essential security interests (judgment of 20 March 2018, Commission v Austria (State Printing Office), C‑187/16, EU:C:2018:194, paragraph 78).
137    Accordingly, a Member State which wishes to avail itself of those derogations must establish that the protection of such interests could not have been attained within a competitive tendering procedure as provided for by Directive 2004/18 (judgment of 20 March 2018, Commission v Austria (State Printing Office), C‑187/16, EU:C:2018:194, paragraph 79).
138    In the present case, the Commission found that the Republic of Lithuania had identified its essential security interests which it considered must be protected and the guarantees inherent in the protection of those interests. In that regard, in paragraphs 232 and 233 of the contested decision, the Commission found that, given the nature of the gas market in Lithuania, the project could be implemented only by an entity which is independent, both on the corporate and economic level, from the sole gas supplier on that market. Subjecting the project at issue to a transparent competitive bidding procedure would run the risk of that supplier having ties with the chosen entity, either at the time of the tender, or by developing those ties subsequently, which would allow the latter to influence the market behaviour of that entity in a way that could negatively affect the provision of the SGEI. For those reasons, the Commission considered that the Lithuanian State could validly conclude that the SGEI operator had to be controlled by the State and made subject to certain security conditions, and that Klaipėdos Nafta satisfied those conditions. The Commission therefore concluded that the direct award to Klaipėdos Nafta of the LNG terminal project as an SGEI complied with Article 14 of Directive 2004/18.
139    The applicants do not dispute the fact that the operation of the LNG terminal comes under the essential interests of the State for the purposes of Article 14 of Directive 2004/18, but submit that there are alternative measures which allow for a competitive tendering procedure, whilst securing those interests of the State.
140    In that regard, the Court considers that none of the alternative measures proposed by the applicants, and summarised in paragraph 128 above, is such as to ensure the protection of the essential interests of the Member State concerned. In particular, none of those measures can guarantee that the entity chosen in a competitive tendering procedure would be free from the influence, now or in the future, of the sole supplier in question. The only way of fully securing the essential interests of the Lithuanian State in the particular circumstances of the market in question is for that State to have control over the operator of the LNG terminal. That objective would be attained only by a direct award to the undertaking matching that profile.
141    In those circumstances, it must be concluded that the need to protect the essential interests of the security of the Lithuanian State could not have been attained by a competitive tendering procedure as provided for in Directive 2004/18. For that very reason, the applicants’ argument that the direct award at issue is not necessary, appropriate and proportionate to the objective pursued must be rejected.
142    It the light of the foregoing, the second part of the third plea in law must be rejected as unfounded.
–       Third part alleging an error in the calculation of the rate of return of Klaipėdos Nafta
143    The applicants dispute the Commission’s conclusion in paragraphs 249 to 252 of the contested decision that the internal rate of return of the LNG terminal project is at an appropriate level given the risks involved with that project. They argue that the Commission thereby departed from paragraphs 36 and 38 of the SGEI Framework, in breach of the general principles of law such as equal treatment and the protection of legitimate expectations, and of Article 106(2) TFEU prohibiting any overcompensation. The Commission should have applied paragraph 38 of the SGEI Framework, given that Klaipėdos Nafta does not have to bear any commercial risk connected with the operation of the LNG terminal, or any such risk has no effect on reasonable profit calculated in free-risk cases. The variable operating costs are covered by the revenue from regasification services and, consequently, even in the absence of such revenue, Klaipėdos Nafta does not bear any commercial risk, since it is to be indemnified anyway by the LNG supplement for all the costs which it incurred.
144    The Commission, the Republic of Lithuania and Klaipėdos Nafta dispute all of the applicants’ arguments.
145    According to paragraph 21 of the SGEI Framework, ‘the amount of compensation must not exceed what is necessary to cover the net cost of discharging the public service obligations, including a reasonable profit’. The term ‘reasonable profit’, according to the principle adopted in paragraph 33 of the SGEI Framework, means the rate of return on capital, or rather the internal rate of return which the undertaking obtains on its capital invested over the lifetime of the project.
146    With regard to the calculation of the rate of return, paragraph 36 of the SGEI Framework stipulates that ‘a rate of return on capital that does not exceed the relevant swap rate plus a premium of 100 basis points is regarded as reasonable in any event’ (‘the risk-free rate of return’).
147    Paragraph 37 of the SGEI Framework provides that ‘where the provision of the SGEI is connected with a substantial commercial or contractual risk, for instance because the compensation takes the form of a fixed lump sum payment covering expected net costs and a reasonable profit and the undertaking operates in a competitive environment, the reasonable profit may not exceed the level that corresponds to a rate of return on capital that is commensurate with the level of risk’.
148    Paragraph 38 of the SGEI Framework provides that where the provision of the SGEI is not connected with a substantial commercial or contractual risk, for instance because the net cost incurred in providing the service of general economic interest is essentially compensated ex post in full, the reasonable profit may not exceed the level that corresponds to the level specified in paragraph 36.
149    In the present case, the SGEI, defined in accordance with
Article 106(2) TFEU and the SGEI Framework and which is the subject matter of the State aid at issue, consists of the obligation on the part of Klaipėdos Nafta to ensure the functioning of the LNG Terminal (paragraph 201 of the contested decision). One specific feature of that obligation is that, according to paragraph 204 of the contested decision, Klaipėdos Nafta must provide regasification services to any operator requesting those services. Thus, the LNG terminal must be maintained in an operational state even under difficult market circumstances by providing continuous access to that infrastructure to any operator wishing to import LNG into Lithuania (paragraph 208 of the contested decision).
150    With regard to the internal rate of return of the LNG terminal for the duration of the SGEI, that is to say, 55 years, applied in the contested decision, that rate, according to the public version of the contested decision, is ‘somewhat’ above the risk-free rate of return (4.84%), but below the regulated weighted average cost of capital (WACC) (7.09%) and ‘clearly below’ the WACC for the sector (paragraph 250 and 251 of the contested decision). It follows that the internal rate of return of the terminal accepted by the Commission for the duration of the SGEI is between 4.84% and 7.09%.
151    According to the applicants, the internal rate of return should, at most, have been set at the same level as the risk-free rate of return, that is to say, 4.84%, in accordance with paragraph 38 of the SGEI Framework, given that the Klaipėdos Nafta does not bear any commercial risk.
152    It should be observed in that regard, first of all, that the risk-free rate of return corresponds to the applicable SWAP rate plus a premium of 100 basis points, in accordance with paragraphs 36 and 38 of the SGEI Framework. In the present case, that rate for Lithuania, calculated on the basis of a 10-year maturity plus 100 basis points, is 4.84% (paragraph 248 of the contested decision). The applicants do not dispute that calculation.
153    In the contested decision, the Commission considered that an internal rate of return above the ‘risk-free’ rate of return was justified for the following reasons. First, it stated that the SWAP rate of 4.84% was calculated on the basis of a 10-year maturity, while in the present case the duration of the SGEI was 55 years, and that the Commission did not have any data enabling it to calculate a SWAP rate for a maturity of 55 years. In those circumstances, the Commission found that the 10-year SWAP rate referred to above considerably underestimated the SWAP rate which should normally be used as a benchmark in the present case (paragraphs 248 and 249 in fine of the contested decision).
154    Secondly, the Commission stated that the SWAP rate plus 100 basis points provided for in the SGEI Framework was not ‘fully appropriate’ in the circumstances of the present case, since the operation of the LNG terminal was subject to commercial risk, despite the compensation provided for. In that regard, the Commission stated that the operation of the LNG terminal takes place on a competitive market and that the purchase obligation applies only for the first 10 years at the most, while the provision of the SGEI at issue must continue for the remaining 45 years in the absence of such an obligation. In addition, according to the Commission, the SGEI provider is not compensated for the entire costs, since the compensation paid ex post covers fixed operating costs in full, but only ‘a small proportion of variable operating costs’, so that ‘at least a part of the variable operating costs’ is not covered by any compensation. In addition, according to the Commission, the project does not benefit from a ‘guaranteed rate of return’, so that if the activities of Klaipėdos Nafta yield less than the regulated WACC, Klaipėdos Nafta will not receive extra compensation (paragraph 249 of the contested decision).
155    The applicants dispute the conclusion that the SGEI provider bears a commercial risk. In their opinion, that is not the case, given that all its costs, fixed and variable, are covered by the SGEI compensation at issue.
156    It must be stated in that regard, as was indicated in paragraphs 153 and 154 above, that the Commission based the conclusion that the SWAP rate plus 100 basis points was not appropriate in the present case on a number of factors.
157    Thus, first, and irrespective of the issue whether the SGEI provider bears a commercial risk, the Commission justified the need to accept a rate of return ‘somewhat’ above the risk-free rate of return (4.84%) by the fact that the latter rate related to a 10-year maturity which undervalues the rate of return that must be used in the present case due to its longer maturity. The applicants do not dispute that finding.
158    Secondly, after the expiry of the purchase obligation, the LNG terminal will operate on a competitive market, whereas the SGEI will continue to be applied for the remaining 45 years. Once the purchase obligation has expired, the designated purchasers are free to seek supplies of gas from sources of their choice. Therefore, downstream, the LNG demand will be subject to market forces. Upstream, since the regasification tariffs are an additional cost for the LNG importers compared with gas imports through the pipelines, the LNG terminal will also be subject to competitive pressures (paragraph 258 of the contested decision). It is apparent from paragraph 37 of the SGEI Framework that the fact that the undertaking operates in a competitive environment may justify the reasonable profit being equal to a ‘rate of return on capital that is commensurate with the level of risk’ and therefore greater than the SWAP rate plus 100 basis points.
159    Thirdly, according to paragraph 38 of the SGEI Framework, the reasonable profit cannot exceed the SWAP rate applicable plus 100 basis points where, for example, the net cost incurred in providing the SGEI is essentially compensated ex post in full. However, that is not the case here, as is demonstrated in paragraphs 161 to 163 below.
160    Fourthly, the applicants similarly
do not dispute the fact that the project does not benefit from a ‘guaranteed rate of return’, so that if the activities of Klaipėdos Nafta yield less than the regulated WACC (paragraph 59 of the contested decision), Klaipėdos Nafta will not receive extra compensation.
161    Fifthly, contrary to what the applicants claim, the SGEI compensation does not cover all of the variable costs of the SGEI, which also creates a commercial risk.
162    As the Commission submits in its replies to the questions asked by the Court by way of a measure of organisation of procedure, the SGEI compensation comes from two of the aid measures at issue. First, that compensation is financed by the LNG supplement which is determined so as to cover the fixed costs of operating the LNG terminal. Secondly, the SGEI compensation is financed by regasification revenues resulting from regasified volumes corresponding to the purchase obligation at regulated prices. Those revenues cover part of the variable operating costs. Indeed, they correspond to the regasification of LNG up to 0.54 billion cubic metres per year for the first 10 years of operating the LNG terminal. Thus, the SGEI compensation covers neither the variable operating costs for the regasification of quantities of LNG exceeding those covered by the purchase obligation for the first 10 years of operating the LNG terminal (that is to say, above 0.54 billion cubic metres per year), nor the variable operating costs incurred during the 45 remaining years of the life of the LNG terminal.
163    It is true that, according to the contested decision, the remaining variable operating costs are covered by revenues from regasification services (paragraph 243 of the contested decision). Those tariffs are regulated and are specifically intended to cover the variable operating costs (paragraph 37 of the contested decision). However, those revenues are not part of the SGEI ‘compensation’ at issue, given that they are not guaranteed by the State, but depend on demand on the free market.
164    All of those considerations justify the Commission accepting SGEI compensation of which the reasonable profit somewhat exceeds the applicable SWAP rate plus 100 basis points.
165    The applicants put forward an argument based on the Commission’s decision of 31 October 2018. Suffice it to state in that regard, as the Commission and Klaipėdos Nafta did in their written observations lodged following the applicants’ presentation of that decision at the hearing, that the subject matter of that decision is aid granted by the Republic of Lithuania to Litgas UAB as a designated supplier, and not to Klaipėdos Nafta. The State aid at issue in that decision is therefore another, different aid from the one at issue in the present case and, in essence, relates to the compensation of Litgas’ costs arising from the purchase obligation. Consequently, no argument concerning the lawfulness of the contested decision may be drawn from the Commission’s decision relied on.
166    Finally, it must be stated that the applicants do not rely on any separate argument concerning the alleged infringement of the ‘general principles of [EU] law such as equal treatment and the protection of legitimate expectations’. Therefore that complaint does not require a separate reply from the Court.
167    In the light of the foregoing, the third part of the third plea in law must be rejected as unfounded and, accordingly, that plea as a whole and the action in its entirety must be dismissed.
Costs
168    Under Article 134(1) of the Rules of Procedure, 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 applicants have been unsuccessful, they must be ordered to pay, in addition to their own costs, the costs incurred by the Commission, in accordance with the form of order sought by the Commission.
169    The Republic of Lithuania and Klaipėdos Nafta are to bear their own costs, in accordance with Article 138(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Achemos Grupė UAB and Achema AB to bear their own costs and to pay those incurred by the European Commission;
3.      Orders the Republic of Lithuania and Klaipėdos Nafta AB to bear their own costs.
Tomljenović
Marcoulli
Kornezov
Delivered in open court in Luxembourg on 12 September 2019.
E. Coulon
V.
Tomljenović
Registrar
President
*      Language of the case: English.