62021TJ0702_RES
Case T‑702/21
Ekobulkos EOOD
v
European Commission
Judgment of the General Court (First Chamber), 21 December 2022
(State aid – Production of electricity from renewable sources – Complaint – Action for failure to act – Call to act – Admissibility – Obligation to act – None)
Actions for failure to act – Natural or legal persons – Admissibility criteria – Prior call to act – Essential procedural requirement – Scope
(Art. 265, second para., TFEU)
(see paragraph 17)
Actions for failure to act – Admissibility criteria – Proper conduct of the pre-litigation procedure – Institution called upon to act – Delimitation of the scope of the dispute – Discrepancy between the call to act and the application – Assessment
(Art. 265, second para., TFEU)
(see paragraphs 19-24)
Actions for failure to act – Commission under an obligation to act – Obligation to examine information concerning allegedly unlawful aid – Obligation either to inform the interested party where the grounds are insufficient, or to adopt a decision at the conclusion of the preliminary examination stage – Failure to act
(Art. 265 TFEU; Council Regulation 2015/1589, Arts 4, 12(1), second subpara., 15(1) and 24(2), second subpara.)
(see paragraphs 27-30)
State aid – Examination of complaints – Obligations of the Commission – Information concerning an allegedly unlawful aid measure already taken into account in a decision not to raise objections – Obligation to carry out an examination – None – Information not revealing a misapplication of the authorised measure or the establishment of new aid – Obligation to adopt a decision at the conclusion of the preliminary examination stage – None
(Arts 107, 108 and 265, second para., TFEU; Council Regulation 2015/1589, Arts 4, 12(1), second subpara., 15(1) and 24(2), second subpara.)
(see paragraphs 34-39)
Actions for failure to act – Natural or legal persons – Actionable omissions – Failure to examine in good time a complaint concerning allegedly unlawful aid – No failure to act with regard to the processing time, inferred from the fact that there is no obligation to act
(Art. 265 TFEU; Council Regulation 2015/1589, Arts 12(1), second subpara., and 24(2))
(see paragraph 40)
Résumé
The company Ekobulkos EEOD is a Bulgarian electricity producer which operates a photovoltaic power plant put into operation on 19 May 2012.
By decision of 4 August 2016, (
1
) the European Commission took the view that the Bulgarian aid scheme for renewable energy production, notified by the Bulgarian authorities, (
2
) was compatible with the internal market in accordance with Article 107(3)(c) TFEU, and decided not to raise any objections.
The scheme thus approved laid down, inter alia, the conditions under which producers of electricity from renewable sources could benefit from preferential purchase prices. Those conditions were amended in 2015, inter alia, by the introduction of anti-cumulation rules (
3
) (‘the measure at issue’). More specifically, in order to eliminate any risk of overcompensation, those rules required, when setting the level of support, where necessary, a reduction in the preferential purchase price by deducting the amount of investment aid received on the basis of an application submitted before 3 May 2011, the date on which the law introducing the scheme in question entered into force.
On 21 February 2020, Ekobulkos submitted a complaint to the Commission in which it claimed that the Republic of Bulgaria had granted certain producers of electricity from renewable sources State aid that was unlawful and incompatible with the internal market by giving them the benefit of preferential purchase prices which were exempt from any reductions under the measure at issue. In support of its claims, Ekobulkos argued more specifically that the measure at issue had the effect of establishing a variable level of support, when setting preferential purchase prices, depending on the date on which the application for aid was submitted. In those circumstances, such a measure was alleged to give rise to inequality between the energy producers concerned which, according to the complainant, was discriminatory.
By letter of 7 October 2020, the Commission replied, stating, first, that it had already examined the measure at issue in the course of the procedure which led to the adoption of the positive decision in 2016, relying in that regard on various elements of analysis set out in the grounds of that decision. In those circumstances, it considered that it had already approved the amendments introduced in 2015, including in particular the measure at issue. Second, the Commission stated that, on the basis of the information provided in the complaint, it did not identify any misapplication of the authorised measure or any new measures liable to constitute State aid. Consequently, it invited the applicant to send it, if it wished, any additional information of use, failing which its complaint would be deemed to have been withdrawn.
By letter of 7 November 2020, Ekobulkos reiterated its analysis, thus maintaining its arguments, and did the same in a final letter of 22 June 2021. In that final letter, presented as a call to act for the purposes of the second paragraph of Article 265 TFEU, Ekobulkos also requested that the Commission use the powers conferred on it by Regulation 2015/1589 (
4
) in order to order the suspension of the application of the contested provisions until it had given a final decision on their compatibility with the internal market.
It was in that context that, on 30 October 2021, Ekobulkos brought an action for failure to act before the General Court seeking a declaration that the Commission had unlawfully failed to take a position on its complaint.
In its judgment of 21 December 2022, the Court dismisses that action as unfounded.
That judgment is significant in two respects. First, it provides the Court with an opportunity to examine the admissibility of an action for failure to act, from the perspective of the delimitation of the scope of the action by the call to act, in the event of a discrepancy, at least in form, between the subject matter of such a letter of formal notice and the claim for a declaration of failure to act. Second, with regard to the substance of the case, it also gives the Court the opportunity to specify the circumstances in which the Commission is not required to take a position on a complaint concerning an alleged State aid measure submitted to it, in particular where it considers that it has already been called upon to examine the measure at issue in a previous decision.
Findings of the Court
First of all, the Court examines a plea of inadmissibility raised by the Commission, alleging infringement of an essential procedural requirement. According to the Commission, the letter of 22 June 2021 cannot be regarded as it being called upon to act, within the meaning of the second paragraph of Article 265 TFEU, in view of the discrepancy between the request submitted on that occasion and the claim for a declaration of failure to act, from the point of view of their respective legal bases.
In that regard, the Court notes at the outset that the call to act referred to in the second paragraph of Article 265 TFEU has the effect of delimiting the scope of the action that is liable to be brought in the event that the institution concerned fails to define its position in that regard within a period of two months. In those circumstances, it is settled case-law that the formal notice required in that regard must have been drafted in a sufficiently clear and precise manner to enable the institution concerned to understand, specifically, the subject matter and that it is required to adopt a position on that matter.
In the present case, after acknowledging the discrepancy on which the Commission relied, the Court nevertheless refuses to accept, in the light of those case-law principles, that that discrepancy is such as to render the action inadmissible. In those circumstances, the Court continues its examination by analysing the substance, in the light of the relevant criteria set out above, of the letter of 22 June 2021, having regard to all of the evidence adduced by the complainant during the administrative procedure. That examination leads it to find that, since the complaint was sent, Ekobulkos had never changed its principal request, which sought, in the present case, a decision on the compatibility of the measure referred to in the light of State aid law and was, moreover, sufficiently clear and precise within the meaning of the case-law referred to above. That also applies to the letter of 22 June 2021, despite the fact that the claim set out therein consists of a formally different request, with the result that it must be regarded as a call to act. In those circumstances, the Court holds that the action must be declared admissible.
Next, as regards the merits of the claim for a declaration of failure to act, the Court recalls that it cannot give a ruling in that regard until it has ascertained whether, at the time when it was called upon to act, the institution in question was indeed under an obligation to act.
In the present case, in the field of State aid, the Commission’s obligations, in particular for the purpose of examining a measure that is liable to constitute State aid, are governed by Regulation 2015/1589. More specifically, Article 15(1) of that regulation provides that the examination of possible unlawful aid is to result in a formal decision. (
5
) Thus, the Commission is under an obligation to act only when it has examined the measure in question; however, the Commission is not required to do so where, following the lodging of a complaint, it has not succeeded in obtaining sufficient information for the purposes of its examination. (
6
)
In that regard, as a first step, the Court finds that, in its 2016 decision on compatibility, the Commission took into account the legislative amendments made in 2015, including the measure at issue, as is apparent from the grounds of that decision. Therefore, the Commission correctly informed the complainant that it had already taken a decision on the measure at issue. There is no provision in Regulation 2015/1589 which creates an obligation for the Commission to adopt a new decision on the compatibility of a measure of State aid with the internal market on which it has already taken a decision, as the Court points out, before adding that, if that were not the case, that would allow any interested party to challenge compatibility analyses, including after the expiry of the period for bringing an action for annulment.
As a second step, in so far as the Commission considered, moreover, that, on the basis of the complaint, it was not possible to identify any misapplication of the measure at issue or the introduction of a new measure other than the one already examined, the Court finds that Ekobulkos has not in any way established how that assessment is incorrect.
It follows from all the foregoing that, at the time when the Commission was sent the call to act, it was under no obligation to act. In the absence of any obligation to act, the complainant also cannot validly rely on the allegedly excessive duration of the procedure for examining its complaint.
In conclusion, since, in the present case, the Commission cannot be criticised for having failed to act, the Court holds that the action must be dismissed.
(
1
)	Decision C(2016) 5205 final of 4 August 2016 in Case SA.44840 (2016/NN).
(
2
)	As notified, that scheme consisted of the Zakon za energiata ot vazobnovyaemi iztochnitsi (ZEVI) (Law on energy from renewable sources), in force since 3 May 2011 (DV No 35 of 3 May 2011), and two regulations of 18 March 2013 on the regulation of electricity prices and of 20 February 2004 on the regulation of electricity prices.
(
3
)	The present case concerns Paragraph 18 of the Zakon za izmenenie i dopalnenie na Zakona za energetikata (ZID-ZE) (Law amending and supplementing the Law on Energy) of 24 July 2015 (DV No 56 of 24 July 2015).
(
4
)	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). The application in the present case referred to Article 13(1) of that regulation.
(
5
)	Under Article 4(2), (3) and (4) of Regulation 2015/1589, to which Article 15(1) of Regulation 2015/1589 refers, the purpose of such a decision is to find either (i) that the measure at issue does not constitute aid, (ii) that the measure is compatible with the internal market, or (iii) that, on the contrary, it is necessary to initiate the formal investigation procedure, in view of the doubts raised by it.
(
6
)	Article 24(2) of Regulation 2015/1589, to which the second subparagraph of Article 12(1) of that regulation refers.