62022TJ0596
JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)
12 March 2025 (
*1
)
(State aid – Measure to reduce wholesale electricity prices in the Iberian Peninsula – Energy crisis – Decision not to raise objections – No serious difficulties – Principle of non-discrimination – Proportionality – Legitimate expectations)
In Case T‑596/22,
PGI Spain, SL, established in Barcelona (Spain),
Berry Superfos Pamplona, SA, established in Navarre (Spain),
Promens Packaging, SA, established in Barcelona,
RPC Envases, SA, established in Madrid (Spain),
Zeller Plastik España, SL, established in Barcelona,
represented by P. Holtrop, lawyer,
applicants,
v
European Commission, represented by T. Scharf, I. Georgiopoulos and C.‑M. Carrega, acting as Agents,
defendant,
supported by
Kingdom of
Spain, represented by A. Gavela Llopis and M. Morales Puerta, acting as Agents,
intervener,
THE GENERAL COURT (Third Chamber, Extended Composition),
composed of M. van der Woude, President, P. Škvařilová-Pelzl, I. Nõmm (Rapporteur), G. Steinfatt and D. Kukovec, Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure,
further to the hearing on 17 September 2024,
gives the following
Judgment
1
By their action under Article 263 TFEU, the applicants, PGI Spain, SL, Berry Superfos Pamplona, SA, Promens Packaging, SA, RPC Envases, SA, and Zeller Plastik España, SL, seek the annulment of the European Commission’s Decision C(2022) 3942 final of 8 June 2022 on State aid SA.102454 (2022/N) – Spain and SA.102569 (2022/N) – Portugal – Production cost adjustment mechanism for the reduction of the electricity wholesale price in the Iberian market (‘the contested decision’).
Background to the dispute
2
The Kingdom of Spain and the Portuguese Republic notified the European Commission on 20 and 23 May 2022, respectively, of a measure aiming to reduce the wholesale electricity price in the Iberian Peninsula by supporting the input costs of fossil fuel technologies (‘the notified measure’).
3
By the contested decision, the Commission decided not to raise objections under Article 4(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9).
4
In the contested decision, the Commission, in the first place, described the essential characteristics of the notified measure. In particular, it observed that:
–
the notified measure was taken in the context of the crises which national and international energy markets have had to face in recent decades, which have led to higher fossil fuel prices, in particular natural gas prices (recitals 4 and 5);
–
this has had an impact on households and small and medium-sized enterprises supplied under regulated contracts in Spain, namely the ‘precio voluntario para el pequeño consumidor’ (PVPC, voluntary price for small consumers) and the regulated discount for certain vulnerable consumers known as ‘Bono social’ (together, ‘the regulated contracts’), and on virtually every type of economic activity (recitals 6 and 7);
–
the EU day-ahead electricity market was based on a marginal pricing method, which meant that the price of electricity was set by the last generation source necessary to meet demand at a given time, namely frequently fossil fuel power plants, which are the most expensive power plants owing to their high operating costs (recitals 20 to 23 and 34);
–
the notified measure entailed making payments to the operators of fossil fuel power plants located in the Iberian Peninsula in order to reduce electricity prices on the wholesale and, consequently, retail markets (recitals 24 and 33 to 39);
–
the notified measure would be financed by, inter alia, a contribution (‘the contribution’) imposed by the Operador del Mercado Ibérico de la Energía-Polo Español, SA (OMIE) on buyers on the wholesale electricity market, that is to say, electricity suppliers and consumers purchasing electricity directly on the wholesale market for their own use (‘direct consumers’), in proportion to the amount of electricity purchased by them (recitals 25 and 44);
–
certain buyers on the wholesale electricity market would be exempt from payment of the contribution, including those which had entered into contracts at a fixed price prior to 26 April 2022, subject to compliance with certain conditions and, in particular, the notification of their contracts to OMIE (‘the exemption from the contribution’) (recital 45(d) to recital 48).
5
In the second place, the Commission examined the classification of the notified measure under Article 107(1) TFEU. While it considered that the notified measure came within the scope of that provision, that conclusion was not extended to the exemption from the contribution. In that regard, the Commission found that buyers on the wholesale market which had entered into agreements to hedge their electricity purchases prior to the adoption of the notified measure would not benefit from the effects of that measure and concluded that the exemption did not lead to a selective advantage being conferred on them and, therefore, did not come within the definition of State aid (recitals 97 to 106 of the contested decision).
6
In the third place, the Commission assessed the compatibility of the notified measure with the internal market under Article 107(3)(b) TFEU. It found, inter alia, that that measure was necessary, appropriate and proportionate (recitals 107 to 154 of the contested decision) and that it did not infringe any of the relevant provisions of EU law, in particular Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ 2019 L 158, p. 54) and Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (OJ 2019 L 158, p. 125) (recitals 174 to 192).
Forms of order sought
7
The applicants claim that the Court should:
–
annul the contested decision;
–
order the Commission to pay the costs.
8
The Commission and the Kingdom of Spain contend that the Court should:
–
dismiss the action;
–
order the applicants to pay the costs.
Law
9
The applicants are Spanish companies which purchase their electricity not directly on the wholesale electricity market, but through an electricity supplier. In order to ensure the stability of the price of their electricity supply, the applicants entered into power purchase agreements. For part of their electricity supply, the applicants entered into agreements involving an undertaking other than their physical electricity supplier and based on offsetting payments depending on the difference between the market price and the price fixed in the contract. They describe that type of power purchase agreement as financial.
10
The applicants, as interested parties and in order to safeguard their procedural rights under Article 108(2) TFEU and Article 1(h) of Regulation 2015/1589, criticise the Commission for not having found that the notified measure raised serious difficulties such as to warrant the initiation of the formal investigation procedure.
11
It should be borne in mind that the lawfulness of a decision not to raise objections, such as the contested decision, based on Article 4(3) of Regulation 2015/1589, depends on the question whether the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should objectively have raised doubts both as to the classification of that measure as aid and to its compatibility with the internal market, given that such doubts must lead to the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of that regulation may participate (see, to that effect, judgments of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 38, and of 5 September 2024, Slovenia v Commission, C‑447/22 P, EU:C:2024:678, paragraph 53).
12
When an applicant seeks the annulment of a decision not to raise objections, that applicant essentially contests the fact that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, thereby infringing the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may invoke any plea capable of showing that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the classification of that measure as ‘aid’ or to the compatibility of that measure with the internal market. The use of such arguments cannot, however, have the consequence of changing the subject matter of the application or altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that classification or compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 108(2) TFEU (see, to that effect, judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 39 and the case-law cited).
13
Evidence of the existence of such doubts, which requires investigation of both the circumstances in which the decision not to raise objections was adopted and its content, must be adduced by the applicant seeking the annulment of that decision on the basis of a body of consistent evidence (judgments of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 40, and of 5 September 2024, Slovenia v Commission, C‑447/22 P, EU:C:2024:678, paragraph 51).
14
In particular, if the examination carried out by the Commission during the preliminary examination procedure is insufficient or incomplete, this constitutes an indication of the existence of serious difficulties in the assessment of the measure at issue, which should have triggered the Commission’s obligation to initiate the formal investigation procedure (judgments of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 41, and of 5 September 2024, Slovenia v Commission, C‑447/22 P, EU:C:2024:678, paragraph 52).
15
In addition, the lawfulness of a decision not to raise objections taken at the end of a preliminary examination procedure falls to be assessed by the EU judicature, in the light not only of the information available to the Commission at the time when the decision was adopted, but also of the information which could have been available to the Commission (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 42 and the case-law cited).
16
However, the information which ‘could have been available’ to the Commission includes that which seemed relevant to the assessment to be carried out in accordance with the case-law cited in paragraph 11 above and which could have been obtained, upon request by the Commission, during the administrative procedure (judgments of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 43, and of 5 September 2024, Slovenia v Commission, C‑447/22 P, EU:C:2024:678, paragraph 54).
17
The Commission is required to conduct a diligent and impartial examination of the contested measures, so that it has at its disposal, when adopting the final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose (judgments of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 44, and of 5 September 2024, Slovenia v Commission, C‑447/22 P, EU:C:2024:678, paragraph 55).
18
However, although the Court of Justice has held that, when the existence and legality of State aid is being examined, it might be necessary for the Commission, where appropriate, to go beyond a mere examination of the facts and points of law brought to its notice, it cannot be inferred from that case-law that it is for the Commission, on its own initiative and in the absence of any evidence to that effect, to seek all information which might be connected with the case before it, even where such information is in the public domain (judgments of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 45, and of 5 September 2024, Slovenia v Commission, C‑447/22 P, EU:C:2024:678, paragraph 56).
19
In support of their action, the applicants rely on five pleas in law, alleging (i) a misunderstanding by the Commission of the notified measure; (ii) errors in the assessment of the appropriateness and proportionality of the notified measure; (iii) infringement of Article 10 of Regulation 2019/943 and Article 5 of Directive 2019/944; (iv) breach of the principle of non-discrimination; and (v) breach of the principle of the protection of legitimate expectations.
20
Implicit in those pleas is the applicants’ criticism that the Commission failed to initiate the formal investigation procedure in respect of the notified measure, even though there were doubts as to its compatibility with the internal market due to the fact that the scope of the exemption from the contribution was restricted solely to buyers on the wholesale electricity market, and was not extended to buyers on the retail market, and the negative effects that such a restriction had had for retail market buyers which had entered into financial power purchase agreements, such as the applicants, to whom the cost of the contribution had been passed on by their physical electricity supplier without them benefiting from a reduction in the price of their electricity.
The applicants’ evidence and arguments submitted on 10 August 2023
21
The Commission and the Kingdom of Spain contend that the evidence and arguments submitted by the applicants on 10 August 2023 in response to the Kingdom of Spain’s statement in intervention should be rejected as inadmissible, since they were submitted out of time. The Commission adds that they are ineffective in any event because they post-date the contested decision and therefore cannot be taken into account for the purpose of reviewing its legality.
22
In that regard, it should be noted that, when they lodged their observations on 10 August 2023, the applicants submitted new evidence, relating to, first, the amendment of the notified measure after the contested decision, which from then on allowed buyers on the retail electricity market to notify OMIE of their power purchase agreements for the period from May to December 2023, and, second, the Commission’s decision of 25 April 2023 not to raise objections to that amendment of the measure.
23
Without the need to consider whether or not that new evidence and the related arguments are out of time such as to render them inadmissible, suffice it to point out that such evidence cannot, in any event, be taken into account for the purpose of reviewing the legality of the contested decision, as the Commission rightly argues.
24
It is apparent from the case-law cited in paragraph 15 above that the contested decision is to be assessed in the light of the information which could have been available to the Commission at the time when it adopted that decision. This is a specific application of the more general principle that, in an action for annulment, the legality of an EU measure is to be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted, such that measures subsequent to the adoption of a decision cannot affect the validity of that decision (see judgment of 17 October 2019, Alcogroup and Alcodis v Commission, C‑403/18 P, EU:C:2019:870, paragraph 45 and the case-law cited).
25
The evidence submitted by the applicants on 10 August 2023 and, consequently, the applicants’ related arguments cannot, therefore, be taken into account in the review of the legality of the contested decision.
The first and fourth pleas, alleging a misunderstanding by the Commission of the notified measure and its discriminatory nature, respectively
26
The General Court considers it appropriate to examine those two pleas together.
27
Under the first plea, the applicants submit that the Commission’s analysis of the functioning of the notified measure lacks precision, since it is not clear from that analysis whether the Commission took into account the fact that retail market buyers also used hedging mechanisms for their electricity purchases equivalent to those of wholesale market buyers, including financial power purchase agreements. In that regard, they argue that the use of that type of agreement results from the legal organisation of the electricity market under EU law and is a simple, common contractual structure of which the Commission could not have been unaware.
28
The applicants infer that the Commission was uncertain as to the exact determination of which participants would be eligible for the exemption. That led it to authorise an aid scheme the compliance of which with EU law was dubious. In that regard, they submit that, although the Commission states that, for the purposes of its assessment, it relied on the information provided by the Kingdom of Spain and the Portuguese Republic in their notification as well as on the additional information submitted by those Member States, those pieces of information were not available to them. They therefore request that the Commission add to the file the notifications and any other relevant information relating to the notified measure that was communicated to it by those Member States.
29
Under the fourth plea, the applicants claim that the Commission failed to examine whether the notified measure complied with the principle of non-discrimination. In that context, they submit, in essence, that the relevant criterion for comparison could not be acquisition on the wholesale or retail market, but should have been ‘being capable of hedging and having hedged one’s electric[ity] supply’, and refer to the major similarities between their situation and that of direct consumers on the wholesale market, namely undertakings which purchase electricity on that market for their own needs.
30
The Commission, supported by the Kingdom of Spain, contends that those two pleas are not indicative of the existence of serious difficulties.
31
It is apparent from a combined reading of those two pleas that the applicants, in essence, put forward three grounds for complaint in order to demonstrate the existence of serious difficulties which warranted the initiation of a formal investigation procedure. First, they submit that a reading of the contested decision reveals an uncertainty as to the exact determination of the electricity buyers eligible for an exemption. Second, they maintain that the Commission could not have been unaware that certain buyers on the retail electricity market ensured the stability of the prices of their supply by means of financial power purchase agreements. Third, they submit that buyers on the retail market which make use of such agreements are in a situation comparable to that of direct consumers on the wholesale market, with the result that the notified measure is contrary to the principle of non-discrimination.
32
In the first place, it follows, in particular, from recitals 4 to 7, 24 and 33 to 39 of the contested decision, first, that the objective of the notified measure is to bring about a reduction in electricity prices in the context of strong upward pressure on fuel prices, which is linked to a series of crises which national and international energy markets have had to face, and, second, that the measure seeks to attain that objective by supporting certain sources of electricity in order to achieve a reduction in wholesale market prices, which should, as a consequence, lead to a reduction in retail market prices.
33
As regards, first, the sources of energy benefiting from support, it is apparent from recitals 33 to 39 of the contested decision that the aim of the notified measure is to reduce the production costs of fossil fuel power plants and the bids which they submit to the day-ahead auction on the wholesale electricity market. According to recital 43, the calculation of the corresponding support payment and its actual settlement are the task of OMIE.
34
As regards, second, buyers on the wholesale electricity market, it follows from recital 44 of the contested decision that, as beneficiaries of the reduction in prices on the wholesale market, they are subject to a contribution covering, in part, the cost of the measure, the amount of which is determined by OMIE according to the amount of their purchases on the wholesale market. Furthermore, it is apparent from recital 45(d) of the contested decision and from Article 8(3) of the notified measure that they are exempt from payment of that contribution in respect of that part of their electricity purchases for which they entered into contracts for the supply of electricity at a fixed price prior to 26 April 2022, subject to the notification of those contracts to OMIE within the period specified by the notified measure. It is also apparent from recitals 46 to 48 of the contested decision that that exemption is temporary since it is no longer intended to apply when contracts are renewed.
35
As regards, third, buyers on the retail market, it follows from a combined reading of, inter alia, recitals 6, 35, 49, 50 and 134 of the contested decision that a distinction is made according to whether or not they have entered into regulated contracts, that is to say, whether they are consumers benefiting from the PVPC tariff or the ‘Bono social’ discount.
36
It is only with regard to regulated contracts that passing on both the reduction in the price of electricity and the amount of the contribution is mandatory. In the case of unregulated contracts, the authors of the notified measure expected, for those where the tariff was dynamic, that is to say, those which directly reflected changes to wholesale prices in consumption prices, that both the reduction in electricity prices on the wholesale market and the amount of the contribution would be passed on to final consumers directly. For other types of unregulated contracts, those authors considered that the passing on of the reduction in the wholesale market price and of the contribution would result from competition on the market, since there were a high number of retail suppliers on the Spanish and Portuguese markets.
37
In the second place and consequently, the ground for complaint based on the uncertainty as to the scope of the exemption in the contested decision has no factual basis. It is apparent from paragraphs 34 and 35 above, first, that that exemption applies exclusively to buyers on the wholesale market which entered into contracts for the supply of electricity at a fixed price prior to 26 April 2022 and, second, that the impact – both of the reduction in the price on the wholesale market and of any payment of the contribution – on contracts entered into by final consumers, other than regulated contracts, is part of competition on the retail market.
38
More specifically, as regards recitals 48, 80, 104 and 142 of the contested decision, highlighted by the applicants as implying, in essence, that certain buyers on the retail market might be eligible for an exemption from payment of the contribution, it is clear that they cannot be interpreted in that sense.
39
First, recital 48 of the contested decision is one of the recitals, together with recitals 44 to 47, referred to in paragraph 34 above, concerning the contribution to which buyers on the wholesale electricity market are subject and their possible exemption. More specifically, it sets out the position of the Portuguese and Spanish authorities that that exemption is temporary, since it is no longer intended to apply upon renewal of contracts for the supply of electricity at a fixed price and, in that context, states that the duration of such contracts is generally one year.
40
Second, recital 80 of the contested decision merely recalls the distinction made in recital 49 of that decision and referred to in paragraph 35 above, as regards the passing on of the amount of the contribution, which is mandatory for consumers under regulated contracts and expected for others.
41
Third, it is clear from recital 104 of the contested decision that it refers exclusively to buyers on the wholesale market. More specifically, it examines whether the exemption enjoyed by those having entered into contracts for the supply of electricity at a fixed price prior to the entry into force of the notified measure is such as to confer on them a selective advantage for the purposes of Article 107(1) TFEU.
42
Fourth and lastly, as regards recital 142 of the contested decision, suffice it to state that the Commission refers explicitly in the first sentence of that recital to the fact that ‘the measure exempts from the obligation to pay the contribution wholesale electricity market buyers, for that part of their electricity purchases for which they have entered into contracts for the supply of electricity at a fixed price prior to 26 April 2022’. Accordingly, the considerations which then follow on the importance of mitigating price risks through financial hedging cannot be understood as suggesting, as the applicants maintain, that all contracts entered into for hedging purposes, including by buyers on the retail market, should be taken into account in order to prevent the cost of the contribution from being passed on to them, even indirectly.
43
As regards, in the third place, the ground for complaint alleging that the Commission failed to take into account the use by buyers on the retail market of financial power purchase agreements, that ground for complaint likewise cannot succeed.
44
It is true that financial power purchase agreements of the type entered into by the applicants have specific features which, in the light of the functioning of the notified measure, mean that the amount of the contribution, but not the reduction in the price of electricity, is passed on to buyers on the retail market which have entered into them. While the notified measure results in the cost of the contribution being passed on by the physical supplier, the application of a contract with another undertaking, based on offsetting payments depending on the difference between the market price and the price fixed in that contract, has the effect of not allowing those buyers to benefit from the overall reduction in the price of electricity expected by the authors of the notified measure.
45
Nevertheless, it must be stated that the applicants have not demonstrated that there was any indication that certain power purchase agreements entered into by buyers on the retail market, on account of their structure, did not lend themselves, or did not lend themselves well, to the reduction in electricity prices on the wholesale market being passed on, an indication which would have been such as to warrant the Commission going beyond a mere examination of the facts and points of law brought to its notice, in accordance with the case-law cited in paragraph 18 above.
46
First, in their written pleadings, the applicants merely state that the ‘Commission is well aware of the existence of long-term [power purchase agreements]’, inferring that awareness from the possibility, arising from EU law, for a consumer to choose that type of electricity supply arrangement. However, such an assertion does not demonstrate that the use of financial power purchase agreements by buyers on the retail market was well known when the Commission adopted the contested decision.
47
Second, it should be noted that the applicants refer generally to certain Commission documents, without identifying the passages of those documents which relate to promoting contractual structures equivalent to those favoured by the applicants. That is true of the Commission’s proposal of 14 March 2023 for a Regulation of the European Parliament and of the Council amending Regulations (EU) 2019/943 and (EU) 2019/942 as well as Directives (EU) 2018/2001 and 2019/944 to improve the Union’s electricity market design (COM(2023) 148 final) or of the Commission staff working document of 18 May 2022 headed ‘Guidance to Member States on good practices to speed up permit-granting procedures for renewable energy projects and on facilitating Power Purchase Agreements’ (SWD/2022/0149 final). While it is true that those documents highlight the potential benefits of entering into power purchase agreements, they do not address the specific case of agreements of the type entered into by the applicants; moreover, the applicants do not refer to any specific passage in those documents.
48
In that regard, the only evidence put forward by the applicants that, according to the way they have presented it, mentions their contractual supply structure is a study carried out on behalf of the European Investment Bank (EIB) and the Commission. However, suffice it to point out that that is a prospective analysis of the possibilities of developing renewable energy purchase agreements – including those of the type entered into by the applicants – in the European Union. It is therefore not such as to demonstrate that the use of that type of power purchase agreements by buyers on the retail market was well known, implying that the Commission should itself have taken their existence into account in its examination of the notified measure.
49
As regards, in the fourth place, the ground for complaint alleging breach of the principle of non-discrimination, in so far as the applicants criticise the fact that the scope of the exemption from the contribution is limited solely to buyers on the wholesale market, that ground for complaint likewise cannot succeed.
50
In that regard, first, it should be noted that such a criticism is tantamount to criticising the Commission for failing to find that the scope of the exemption from the contribution resulted in a selective advantage being conferred only on buyers on the wholesale market and therefore constituted State aid within the meaning of Article 107(1) TFEU.
51
The assessment of the condition relating to the selectivity of the advantage is precisely aimed at identifying the existence of differential treatment which may, in essence, be classified as discriminatory. It involves determining whether, under a particular legal regime, the national measure in question is such as to favour ‘certain undertakings or the production of certain goods’ over other undertakings which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (see judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 54 and the case-law cited).
52
Second, it should be noted that, in recitals 97 to 101, 104 and 105 of the contested decision, the Commission examined whether that exemption constituted State aid within the meaning of Article 107(1) TFEU and concluded that that was not the case, since the condition of selectivity inherent in that concept was not satisfied. Furthermore, it is apparent, more specifically, from recital 104 of the contested decision that the Commission explicitly decided only the question whether the difference in treatment between buyers on the wholesale market, depending on whether or not they were eligible for an exemption, gave rise to a selective advantage, but did not address whether a selective advantage existed on account of buyers on the retail market being excluded from eligibility for the exemption.
53
However, third, having regard to the logic of the notified measure, as recalled in the contested decision (see paragraphs 32 to 36 above), it was clear that buyers on the wholesale and retail markets were not in a comparable situation in terms of the way in which the reduction in wholesale market prices and the payment of the contribution was intended to be reflected in the price of electricity, with the result that the Commission did not have to explicitly decide whether the fact that the scope of the exemption from the contribution is limited solely to buyers on the wholesale market constituted a selective advantage.
54
As regards, on the one hand, buyers on the wholesale market, those buyers purchase their electricity directly at the price deriving from that market. The advantage they enjoy depends precisely on the difference, calculated by OMIE, between the market price as resulting from the support payment for certain sources of energy and what the market price would have been without such support payment. Similarly, OMIE is responsible for precisely determining the amount of the contribution and of the exemption for buyers which have not been able to benefit from the reduction in those prices.
55
On the other hand, the price on the retail electricity market is formed on the basis of supply and demand on that second market. As stated in paragraph 36 above, that factor was taken into account by the authors of the notified measure, since they envisaged, save as regards regulated contracts, not only the reduction in the price of electricity but also the amount of the contribution being passed on to consumers indirectly, as a result of competition on that market, referring to the large number of retail suppliers in Spain and Portugal.
56
It follows from the foregoing considerations that the applicants’ third ground for complaint fails to demonstrate the existence of serious difficulties such as to warrant the initiation of the formal investigation procedure.
57
That conclusion is not invalidated by the applicants’ line of argument that they are in a situation comparable to that of direct consumers on the wholesale market.
58
First, that line of argument is based on the premiss that the Commission should itself have taken into account the specific nature of buyers on the retail market which have recourse to financial power purchase agreements. However, for the reasons set out in paragraphs 43 to 48 above, such a premiss cannot be taken into account.
59
Second, and in any event, while the purchase of electricity by direct consumers on the wholesale market is similar in purpose to that of the applicants, in that it is made for their own consumption and not for the purpose of supplying electricity to subsequent buyers, the fact remains that that purchase is made on two different markets for which pricing does not follow the same logic, as set out in paragraphs 53 and 54 above.
60
In the light of the foregoing, the first and fourth pleas must be rejected as unfounded.
61
As regards the applicants’ request seeking, in essence, that the notifications made by the Kingdom of Spain and the Portuguese Republic and the exchanges between those Member States and the Commission be placed on the file, it should be borne in mind that it is for the Court to assess the usefulness of the measures of organisation of procedure requested by one of the main parties (see, to that effect, judgment of 6 July 1999, Séché v Commission, T‑112/96 and T‑115/96, EU:T:1999:134, paragraph 284).
62
To enable the Court to determine whether it is conducive to the proper conduct of the procedure to order the production of certain documents, the party requesting production must identify the documents requested and provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings (judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 93; see, also, judgment of 16 October 2013, TF1 v Commission, T‑275/11, not published, EU:T:2013:535, paragraph 117 and the case-law cited). Thus, that party must, inter alia, provide precise and relevant evidence to explain how the documents in question could be relevant to the resolution of the dispute (see, to that effect, judgment of 20 July 2016, Oikonomopoulos v Commission, T‑483/13, EU:T:2016:421, paragraph 253 (not published)).
63
First, it must be pointed out that the applicants had access to the text of the notified measure and, for the reasons set out in the examination of the present plea, that the notified measure is based on a clear logic founded on the distinction between purchases on the wholesale and retail markets.
64
Second, the applicants’ request for a measure of organisation of procedure seeks, by its scope, to have the documents in the Commission’s administrative file added to the proceedings, despite the fact that the applicants, even in their capacity as interested parties, do not have a right of access to that file (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 58).
65
Third, in those circumstances, the applicants needed to have adduced evidence suggesting that, beyond the text of the notified measure, the issue of the use by buyers on the retail market of financial power purchase agreements had been addressed during the exchanges surrounding the notification, which both the Commission and the Kingdom of Spain refute. However, it is clear that no such evidence has been adduced.
66
The applicants’ request for a measure of organisation of procedure must therefore be refused.
The second plea, alleging, in essence, that the notified measure is disproportionate
67
The applicants submit, in essence, that the Commission should have found that the notified measure was not appropriate or proportionate and should therefore have initiated the formal investigation procedure. In that regard, they criticise, first, an alleged exclusion from the scope of the exemption of certain ways of hedging electricity prices, namely the use of financial power purchase agreements, second, limiting the opportunity to benefit from an exemption only to buyers on the wholesale market and, third, a failure by the Commission to take into account the effects of the notified measure on final consumers in the same situation as the applicants.
68
The Commission, supported by the Kingdom of Spain, recalls, as a preliminary point, that it was not required to take into account buyers of electricity on the retail market in the same situation as the applicants. In any event, it considers that the examination of the proportionality of the notified measure did not raise any serious difficulties.
69
As a preliminary point, in so far as the present plea is based on the premiss that the Commission should have taken into account the particular situation of buyers on the retail market which have entered into agreements of the type favoured by the applicants, it must be rejected at the outset, for reasons similar to those set out in paragraphs 43 to 48 above.
70
Similarly, the applicants’ line of argument that the notified measure excluded a particular type of power purchase agreement from the scope of the exemption is based on a misreading of the contested decision. For the reasons set out in paragraphs 33 to 35 above, the scope of the exemption envisaged in recital 45(d) of the contested decision depends not on the type of agreement entered into, but on the market on which the electricity is purchased.
71
The only relevant question is therefore whether restricting the exemption from the contribution solely to buyers on the wholesale market constituted a serious difficulty from the point of view of proportionality.
72
The principle of proportionality, recalled in Article 5(4) TEU, requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question (see, to that effect, judgment of 17 May 1984, Denkavit Nederland, 15/83, EU:C:1984:183, paragraph 25); where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph 55).
73
A measure’s compliance with the principle of proportionality thus includes three components. The first component concerns its appropriateness, namely whether it is able to achieve the legitimate objective pursued. The second component concerns its necessity and implies that the legitimate objective in question cannot be attained by less restrictive but equally appropriate measures (see, to that effect, judgment of 26 September 2013, Dansk Jurist- og Økonomforbund, C‑546/11, EU:C:2013:603, paragraph 69). Lastly, the third component, sometimes described as ‘proportionality in the strict sense’, concerns its proportionality, namely the absence of disadvantages that are disproportionate to the aims pursued (see, to that effect, judgments of 7 March 2013, Poland v Commission, T‑370/11, EU:T:2013:113, paragraph 89, and of 26 September 2014, Romonta v Commission, T‑614/13, EU:T:2014:835, paragraph 74).
74
As regards, more specifically, the component relating to the necessity of the notified measure, it is settled case-law that the Commission is not required to make a decision in the abstract on every alternative measure conceivable, since, although the Member State concerned must set out in detail the reasons for adopting the aid scheme in question, in particular in relation to the eligibility criteria used, it is not required to prove, positively, that no other conceivable measure, which by definition would be hypothetical, could better achieve the objective pursued. If that Member State is not under any such obligation, an applicant is not entitled to ask the Court to require the Commission to take the place of the national authorities in that task of normative prospecting in order to examine every alternative measure possible (see judgment of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 94 and the case-law cited).
75
In addition, since, by the present plea, the applicants are calling into question the assessment of the proportionality of an aid scheme which the Commission found to be compatible with Article 107(3)(b) TFEU, it should be recalled that, in the application of Article 107(3) TFEU, the Commission enjoys wide discretion, the exercise of which involves complex economic and social assessments (see judgment of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission, C‑654/17 P, EU:C:2019:634, paragraph 80 and the case-law cited), with the result that judicial review must be confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with, and to verifying that the facts relied on are accurate and that there has been no error of law, manifest error in the assessment of the facts or misuse of powers (see judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 78 and the case-law cited).
76
In the first place, as pointed out in paragraph 32 above, it should be borne in mind that the notified measure is intended to bring about a reduction in electricity prices in the context of strong upward pressure on fuel prices linked to the crisis faced by national and international markets. First, the materiality of that crisis and its impact on prices is not called into question by the applicants. Second, such an objective is consistent with that envisaged in Article 107(3)(b) TFEU, which is to ‘remedy a serious disturbance in the economy of a Member State’.
77
In the second place, as also pointed out in paragraph 32 above, the notified measure seeks to attain that objective by supporting certain sources of electricity in order to achieve a reduction in prices on the wholesale market, which should in turn lead to a reduction on the retail market. Furthermore, as is apparent from paragraphs 33 to 35 and 53 to 56 above, the passing on of the reduction in prices on the retail market, with the exception of regulated contracts, is a product of competition on that market.
78
In that context, first, the Commission could find in recitals 131 to 134 of the contested decision, without making a manifest error of assessment, that, without the notified measure, competition would not allow those legitimate objectives to be attained.
79
Second, Article 3(a) and (b) of Regulation 2019/943 and Article 5(1) of Directive 2019/944 encourage the free formation of electricity prices on the basis of supply and demand. Those articles state that ‘prices shall be formed on the basis of demand and supply’, ‘market rules shall encourage free price formation and shall avoid actions which prevent price formation on the basis of demand and supply’, ‘suppliers shall be free to determine the price at which they supply electricity to customers’ and ‘Member States shall take appropriate actions to ensure effective competition between suppliers.’
80
It is clear that the notified measure, in so far as it limits the direct involvement of the national authorities in price formation on the wholesale market and does not extend it to the retail market, except in relation to regulated contracts, preserves as far as possible the principle of the free formation of electricity prices on the basis of demand and supply contained in Regulation 2019/943 and Directive 2019/944.
81
Third, in so far as the applicants submit that the reduction in the price of electricity on the retail market should have been sought by providing for the possibility for buyers on that market to notify their power purchase agreements in order to benefit, ipso facto, from an exemption from payment of the contribution, they are putting forward an alternative approach to that favoured by the Member States and endorsed by the Commission, which, in accordance with the case-law cited in paragraph 74 above, cannot be taken into account.
82
In any event, it should be noted that the approach to which the applicants refer departs even further from the logic of the principle of free price formation deriving from Directive 2019/944 and Regulation 2019/943 and cannot therefore be regarded as necessary within the meaning of the case-law cited in paragraph 73 above.
83
In the light of the foregoing, the second plea must be rejected.
The third plea, alleging that the notified measure infringed Regulation 2019/943 and Directive 2019/944
84
The applicants argue that, since the notified measure departs from the principle of free price formation, it should have complied with the conditions permitting a derogation from the application of that principle, contained in Article 5(4) of Directive 2019/944, which was not the case, owing to the effects of the notified measure on electricity consumers in the same situation as the applicants.
85
It is clear that the present plea is based exclusively on the premiss that the Commission should have taken into account the situation of buyers of electricity on the retail market which have entered into financial power purchase agreements. Accordingly, the present plea must be rejected at the outset, for reasons similar to those set out in paragraphs 43 to 48 above, as the Commission and the Kingdom of Spain rightly argue.
The fifth plea, alleging breach of the principle of the protection of legitimate expectations
86
The applicants state that the Commission and, more generally, the European Union have incentivised the conclusion of financial power purchase agreements, particularly with a view to promoting renewable energy. They infer that they could reasonably have expected not to be treated worse than undertakings which had not sought to hedge market risks, be more efficient and be less polluting.
87
The Commission, supported by the Kingdom of Spain, contends that no legitimate expectation could have arisen on the part of the applicants.
88
In accordance with settled case-law, the principle of the protection of legitimate expectations is among the fundamental principles of EU law and any economic operator whom an institution has, by giving him precise assurances, caused to entertain justified expectations may rely on that principle (see judgment of 24 October 2013, Kone and Others v Commission, C‑510/11 P, not published, EU:C:2013:696, paragraph 76 and the case-law cited).
89
Regardless of the form in which it is communicated, precise, unconditional and consistent information which comes from an authorised and reliable source constitutes such assurance. However, a person may not plead breach of that principle unless he has been given precise assurances by the administration (see judgment of 14 February 2006, TEA-CEGOS and Others v Commission, T‑376/05 and T‑383/05, EU:T:2006:47, paragraph 88 and the case-law cited).
90
It is clear that the applicants’ line of argument is based on the premiss that the Commission caused them to entertain a legitimate expectation that final consumers who had used financial power purchase agreements would be treated at least as favourably as those who had entered into other types of agreement.
91
In that regard, suffice it to point out that, for reasons similar to those set out in paragraphs 46 to 48 above, the applicants have not adduced any evidence to show that precise, unconditional and consistent information from authorised and reliable sources stipulated that the situation of consumers using financial power purchase agreements would be taken into account when the Commission exercised its powers to monitor State aid.
92
Accordingly, the fifth plea must be rejected.
93
It follows from the foregoing that none of the pleas put forward by the applicants is capable of demonstrating that the Commission should have identified the existence of serious difficulties requiring the initiation of the formal investigation procedure in respect of the notified measure.
94
The action must therefore be dismissed.
Costs
95
Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
96
Under Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. The Kingdom of Spain must therefore bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber, Extended Composition)
hereby:
1.
Dismisses the action;
2.
Orders PGI Spain, SL, Berry Superfos Pamplona, SA, Promens Packaging, SA, RPC Envases, SA and Zeller Plastik España, SL to bear their own costs and to pay those incurred by the European Commission;
3.
Orders the Kingdom of Spain to bear its own costs.
Van der Woude
Škvařilová-Pelzl
Nõmm
Steinfatt
Kukovec
Delivered in open court in Luxembourg on 12 March 2025.
V. Di Bucci
Registrar
S. Papasavvas
President
(
*1
)	Language of the case: English.