62020TJ0626
JUDGMENT OF THE GENERAL COURT (Seventh Chamber, Extended Composition)
21 December 2022 (
*1
)
(State aid – Biogas market – Tax exemptions compensating for additional production costs – Decisions not to raise objections – Action for annulment – Interest in bringing proceedings – Admissibility – Failure to initiate the formal investigation procedure – Serious difficulties – Article 108(2) and (3) TFEU – Article 4(3) and (4) of Regulation (EU) 2015/1589 – Guidelines on State aid for environmental protection and energy 2014-2020 – Cumulation of aid – Aid granted by several Member States – Imported biogas – Principle of non-discrimination – Article 110 TFEU)
In Case T‑626/20,
Landwärme GmbH, established in Munich (Germany), represented by J. Bonhage and M. Frank, lawyers,
applicant,
v
European Commission, represented by K. Blanck, A. Bouchagiar and P. Němečková, acting as Agents,
defendant,
supported by
Kingdom of Sweden, represented by O. Simonsson, C. Meyer‑Seitz, A. Runeskjöld, M. Salborn Hodgson, H. Shev, H. Eklinder and R. Shahsavan Eriksson, acting as Agents,
intervener,
THE GENERAL COURT (Seventh Chamber, Extended Composition),
composed, at the time of the deliberations, of R. da Silva Passos, President, V. Valančius, I. Reine, L. Truchot (Rapporteur) and M. Sampol Pucurull, Judges,
Registrar: S. Jund, Administrator,
having regard to the written part of the procedure,
further to the hearing on 2 June 2022,
gives the following
Judgment
1
By its action under Article 263 TFEU, the applicant, Landwärme GmbH, seeks the annulment, first, of Commission Decision C(2020) 4489 final of 29 June 2020 on State aid SA.56125 (2020/N) – Sweden – Prolongation and modification of scheme SA.49893 (2018/N) – Tax exemption for non-food based biogas and bio-propane in heat generation (‘Decision 4489’) and, second, of Commission Decision C(2020) 4487 final of 29 June 2020 on State aid SA.56908 (2020/N) – Sweden – Prolongation and modification of biogas scheme for motor fuel in Sweden (‘Decision 4487’ and, together with Decision 4489, ‘the contested decisions’).
Background to the dispute
2
The applicant is a company incorporated under German law which produces biomethane in Germany.
3
On 1 April 2020, the Kingdom of Sweden notified the European Commission, in accordance with Article 108(3) TFEU, of two measures by which it intended to modify and extend until 31 December 2030 two aid schemes, first applied in 2003 and 2007, that had already been approved by the Commission on several occasions and were due to expire on 31 December 2020. Those schemes exempt the purchase of certain renewable fuel gases (‘biogas’) from the payment of certain excise duties which are, by contrast, payable on the purchase of fossil gases, such as natural gas, used for the same purposes.
4
On 29 June 2020, the Commission adopted Decision 4489, a summary of which is published in the Official Journal of the European Union (OJ 2020 C 245, p. 2), and Decision 4487, a summary of which is published in the Official Journal of the European Union (OJ 2020 C 260, p. 4).
5
By the contested decisions, the Commission, following the preliminary examination procedure provided for in 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) (‘the preliminary examination procedure’) and without initiating the formal investigation procedure provided for in Article 108(2) TFEU and referred to in Article 6 thereof (‘the formal investigation procedure’), considered that the measures notified by the Kingdom of Sweden concerned State aid which could be declared compatible with the internal market under Article 107(3)(c) TFEU.
6
To that end, in the first place, the Commission stated that the aid schemes covered by the contested decisions (‘the schemes at issue’), which provided for total tax exemptions, were to be classified as State aid within the meaning of Article 107(1) TFEU, specifically operating aid (recitals 6, 31 and 32 of Decision 4489 and recitals 35 and 50 of Decision 4487).
7
In the second place, the Commission assessed the compatibility of the schemes at issue with the internal market in the light of the Guidelines on State aid for environmental protection and energy 2014-2020 (OJ 2014 C 200, p. 1; ‘the EPE Guidelines’) (recital 34 of Decision 4489 and recital 38 of Decision 4487).
8
In particular, first, the Commission found that (i) the schemes at issue pursued an objective of common interest, in that they helped the Kingdom of Sweden to achieve the objectives that it had set out in terms of renewable energy source use, (ii) those schemes were necessary, on the ground that, without the total tax exemptions provided for by those schemes (‘the tax exemptions in question’), biogas would be more expensive than fossil gases, and (iii) those schemes had an incentive effect, in that the granting of those exemptions promoted the use and production of biogas (see recitals 37 to 40, 42, 43, 47 and 48 of Decision 4489 and recitals 40, 44, 45 and 47 of Decision 4487).
9
Second, the Commission examined the proportionality of the schemes at issue and noted, in particular, that, in the light of the data provided by the Energimyndigheten (Energy Agency, Sweden) (‘the Swedish Energy Agency’), the aid granted under those schemes did not exceed the amount necessary to compensate for the higher costs of biogas production as compared with fossil gas production, and thus did not give rise to overcompensation of those higher costs (‘the overcompensation’). Notwithstanding the tax exemptions in question, the production costs of biogas remained higher than the market price for fossil gases. The Commission noted, moreover, that it was unlikely that overcompensation would occur in the future. In addition, the Commission pointed out that, according to the information submitted by the Swedish authorities, although it was possible that biogas might benefit both from the aid provided for by the schemes at issue and from other aid favouring biogas production, the cumulation of that aid did not give rise to overcompensation. Furthermore, the Commission added that the Swedish authorities had undertaken to monitor market trends, in order to detect any possible future overcompensation, and to keep the Commission informed (recitals 17, 18, 20, 22, 28, 47, 49 to 56 and 64 of Decision 4489 and recitals 19 to 24, 26, 27, 32, 50 to 59 and 67 of Decision 4487).
10
Third, the Commission took the view that it was necessary to apply paragraph 116 of the EPE Guidelines, according to which ‘the Commission presumes the appropriateness of aid and the limited distortive effects of the aid, provided all other conditions are met’, which in the Commission’s view, was the case with the schemes at issue (recitals 41 and 58 of Decision 4489 and recitals 48 and 60 of Decision 4487).
11
Fourth, since the schemes at issue consisted in granting tax exemptions, the Commission examined whether those exemptions complied with the requirements laid down in Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51). The Commission found that to be so, in particular in view of the fact that those exemptions were applicable regardless of the Member State of origin of the biogas benefiting from the exemptions (recitals 62 to 66 of Decision 4489 and recitals 64 to 68 of Decision 4487).
Forms of order sought
12
The applicant claims that the Court should:
–
annul the contested decisions;
–
order the Commission to pay the costs.
13
The Commission contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
14
The Kingdom of Sweden, intervening in support of the Commission, contends that the Court should dismiss the action.
Law
15
In support of the action, the applicant relies on four pleas in law, alleging (i) ‘unlawfulness of the aid’, (ii) ‘error of assessment’, (iii) infringement of the obligation to state reasons and (iv) infringement of the obligation to initiate the formal investigation procedure.
16
Without raising any objection by separate document on the basis of Article 130(1) of the Rules of Procedure of the General Court, the Commission, in addition to contesting the merits of the pleas put forward by the applicant, submits that the action is inadmissible. Although it does not express a view on the applicant’s standing to bring proceedings, the Commission maintains that the applicant has no interest in bringing proceedings for annulment of the contested decisions.
Admissibility
17
Before examining the applicant’s interest in bringing proceedings, it is necessary to address the public policy issue (see, to that effect, judgments of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 45; of 24 October 1997, EISA v Commission, T‑239/94, EU:T:1997:158, paragraph 27; and of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraphs 36 and 37) of whether the applicant has standing to bring proceedings against the contested decisions.
The standing to bring proceedings
18
Under the fourth paragraph of Article 263 TFEU, a natural or legal person may institute proceedings against an act not addressed to that person only if that act is of direct and individual concern to him or her or if the proceedings are directed against a regulatory act which is of direct concern to him or her and does not entail implementing measures.
19
The contested decisions are addressed solely to the Kingdom of Sweden, so it is necessary to determine whether the applicant fulfils the abovementioned conditions of admissibility.
20
As to whether the applicant is directly and individually concerned by the contested decisions, it must be recalled that, where the Commission adopts a decision not to raise objections, on the basis of Article 4(3) of Regulation 2015/1589, it not only declares that the measures at issue are compatible with the internal market, but also – by implication – refuses to initiate the formal investigation procedure (see judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 39 and the case-law cited).
21
If, in the context of the preliminary examination procedure, the Commission finds that the measure notified raises doubts or serious difficulties as to its compatibility with the internal market, the Commission is required to adopt, on the basis of Article 4(4) of Regulation 2015/1589, a decision initiating the formal investigation procedure (see, to that effect, judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 40 and the case-law cited). It must be observed that, according to the case-law, the concepts of ‘doubts’ and ‘serious difficulties’ coincide (judgment of 22 September 2021, DEI v Commission, T‑639/14 RENV, T‑352/15 and T‑740/17, under appeal, EU:T:2021:604, paragraph 115; see also, to that effect, judgments of 12 February 2008, BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 328, and of 9 September 2020, Kerkosand v Commission, T‑745/17, EU:T:2020:400, paragraph 106).
22
According to Article 6(1) of Regulation 2015/1589, a decision to initiate the formal investigation procedure is to call upon the Member State concerned and upon other interested parties to submit comments within a prescribed period which is normally not to exceed one month.
23
The lawfulness of a decision not to raise objections based on Article 4(3) of Regulation 2015/1589 depends on whether there are serious difficulties as to the compatibility of the schemes at issue with the internal market. Since the existence of serious difficulties must trigger the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of that regulation can participate, it must be held that any interested party within the meaning of the latter provision is directly and individually concerned by such decisions. If the beneficiaries of the procedural guarantees provided for in Article 108(2) TFEU and Article 6(1) of that regulation are to be able to ensure that those guarantees are respected, it must be possible for them to challenge before the EU judicature the decision not to raise objections (see judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 41, and the case-law cited).
24
The concept of ‘interested party’ is defined in Article 1(h) of Regulation 2015/1589 as referring to ‘any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations’. That provision reproduces the definition of ‘parties concerned’ within the meaning of Article 108(2) TFEU, as established by the case-law (see judgment of 2 September 2021, Ja zum Nürburgring v Commission, C‑647/19 P, EU:C:2021:666, paragraph 56 and the case-law cited).
25
In the present case, as is apparent from the parties’ replies to the Court’s written and oral questions, the direct beneficiaries of the tax exemptions in question are purchasers of biogas in Sweden who, by virtue of those exemptions, pay neither the energy excise duty nor the excise duty on carbon dioxide provided for by Swedish law. Nevertheless, those exemptions, even though they do not affect the production costs of biogas, also benefit, albeit indirectly, producers and importers of biogas. Those producers and importers are able to sell biogas in Sweden at a final price which, since it does not include those excise duties, is lower than the price at which the biogas would have been sold in the absence of those exemptions. Those exemptions therefore allow biogas to be sold at a price which can compete with the price of natural gas, notwithstanding the fact that the production costs of natural gas are usually lower than those of biogas.
26
The applicant, although it claims to no longer sell biogas in Sweden because of the more competitive prices charged by Danish producers who benefit from overcompensation, is a potential indirect beneficiary of the aid provided for by the schemes at issue, as the parties confirmed at the hearing. First, it is not disputed that the applicant satisfies the conditions of eligibility for that aid. Second, it should be pointed out that similar aid has been granted by the Kingdom of Sweden for many years and that the applicant has, in the past, benefited from that aid, since it sold its biogas in Sweden in 2013 and, in larger quantities, in 2014. Moreover, since it is seeking to sell its biogas in Sweden but is prevented from doing so on account of the uncompetitive price it is compelled to charge, the applicant is a competitor of the undertakings which, as they sell their biogas in Sweden, are current beneficiaries of that aid. Consequently, it is an ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589 (see, to that effect and by analogy, judgment of 2 September 2021, Ja zum Nürburgring v Commission, C‑647/19 P, EU:C:2021:666, paragraph 57). Furthermore, the Commission, in response to a question from the Court at the hearing, acknowledged that this was the case.
27
However, in order to have standing to bring an action for annulment of the contested decisions, the applicant must also seek, by the action, to ensure the protection of the procedural rights which it would have had if the Commission had initiated the formal investigation procedure on account of the existence of serious difficulties.
28
In that regard, it is important to recall that, according to the case-law, when an applicant seeks the annulment of a decision under Article 4(3) of Regulation 2015/1589, 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 procedure for the measure notified should have raised doubts as 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 of altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure (see 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).
29
Consequently, since this is an action challenging the legality of a decision adopted under Article 4(3) of Regulation 2015/1589, without initiating the formal investigation procedure, it is, in principle, necessary to consider all the complaints and arguments raised by the applicant in the pleas in law relied on, in order to assess whether they make it possible to identify serious difficulties or doubts facing the Commission and requiring it to initiate the formal investigation procedure. In such an action, pleas challenging the compatibility of the aid are therefore to be assessed by the Court in the light of the existence of a serious difficulty, without its being necessary to declare them inadmissible (see judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraphs 45 to 47 and 49 and the case-law cited; see also, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 57 and 58).
30
It also follows from the case-law that an applicant has the right, in order to demonstrate the infringement of its procedural rights on account of the doubts that the measure at issue should have raised as to its compatibility with the internal market, to put forward arguments aimed at demonstrating that the Commission’s finding as to the compatibility of that measure with the internal market was incorrect, which, a fortiori, is such as to establish that the Commission should have harboured doubts in its assessment of the compatibility of that measure with the internal market. Accordingly, the Court is entitled to examine the substantive arguments made by the applicant, in order to determine whether they are such as to support the plea in law alleging the existence of doubts justifying initiation of the formal investigation procedure (see, to that effect, judgment of 14 April 2021, Achema and Lifosa v Commission, T‑300/19, not published, EU:T:2021:191, paragraph 203 and the case-law cited).
31
In the present case, it must be noted that, by its fourth plea (see paragraph 15 above), the applicant argues that the Commission should have initiated the formal investigation procedure. In accordance with the case-law referred to in paragraph 29 above, it is necessary to examine all the complaints and arguments put forward by the applicant in order to determine whether it has demonstrated the existence of serious difficulties requiring the Commission to initiate that procedure. At the hearing, the applicant confirmed that, by its action, it complains, inter alia, that the Commission did not initiate the formal investigation procedure despite the fact that, in the light of the information it had submitted to the Commission, that institution could not have been unaware of the existence of serious difficulties as to whether the possible cumulation of the aid granted in Sweden under the schemes at issue with other aid, granted by Member States other than the Kingdom of Sweden to biogas producers (‘the cumulation at issue’), gave rise to overcompensation in favour of those producers when they sold biogas in Sweden (‘the complaint relating to the cumulation at issue’).
32
Accordingly, it must be concluded that the applicant has standing to bring proceedings in so far as it seeks to guarantee that its procedural rights are respected, by raising, in particular, the complaint relating to the cumulation at issue.
The interest in bringing proceedings
33
The Commission argues that the applicant, as a potential beneficiary of the schemes at issue, has not demonstrated its interest in bringing proceedings against the contested decisions. The annulment of those decisions cannot have the effect of authorising aid having a wider scope than that of the aid provided for by those schemes. The annulment of those decisions would have no effect on the fact that biogas producers who benefit, in Member States other than the Kingdom of Sweden, from aid for energy production from biogas are able to sell their biogas in Sweden at more attractive prices than those offered by the applicant, which is not granted similar aid by the Federal Republic of Germany. In the Commission’s view, the applicant’s interest in bringing proceedings cannot derive from the fact that it would be entitled to submit observations to the Commission in the event that, following annulment of those decisions, the formal investigation procedure is initiated.
34
The applicant disputes the Commission’s arguments.
35
According to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (judgments of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:C:2014:105, paragraph 54, and of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 25).
36
An applicant’s interest in bringing proceedings must be vested and current and may not concern a future and hypothetical situation. That interest must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 56 and 57 and the case-law cited).
37
It is the applicant who must prove that he has an interest in making his application, which is an essential and fundamental prerequisite for any legal proceedings (see judgments of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 27 and the case-law cited, and of 14 April 2005, Sniace v Commission, T‑141/03, EU:T:2005:129, paragraph 31 and the case-law cited).
38
In the present case, the applicant is a potential indirect beneficiary of the aid provided for by the schemes at issue (see paragraphs 25 and 26 above).
39
However, the mere fact that the contested decisions declare the aid schemes compatible with the internal market and thus, in principle, do not have an adverse effect on an undertaking which may benefit from them does not dispense the EU judicature from examining whether the Commission’s finding has binding legal effects such as to affect the interests of that undertaking (see, to that effect, order of 25 March 2019, Abaco Energy and Others v Commission, T‑186/18, not published, EU:T:2019:206, paragraph 42 and the case-law cited). Consequently, contrary to what the Commission claims, the fact that the applicant is a potential beneficiary of the aid provided for by the schemes at issue is not a sufficient basis for concluding that it does not have an interest in bringing proceedings for annulment of the contested decisions.
40
The applicant responds that the schemes at issue act as a ‘catalyst’ which accentuates the market foreclosure effects of the aid for energy production from biogas granted by Member States other than the Kingdom of Sweden. Those schemes have an anti-competitive effect in themselves, in so far as, in order to benefit from the tax exemptions in question, biogas producers benefiting from that aid in their Member States increase their exports to Sweden and thus exert pressure on the prices charged by other biogas producers who do not receive similar aid. The annulment of the decisions authorising those schemes would eliminate that ‘catalyst’ and thus procure an advantage to the applicant.
41
Consequently, if the Court were to uphold the action and annul the contested decisions by a judgment finding that the applicant’s pleas in law and arguments, in particular the complaint relating to the cumulation at issue, establish the existence of serious difficulties which were disregarded by the Commission, that institution would be obliged, in complying with the judgment delivered, to adopt decisions under Article 4(4) of Regulation 2015/1589, with the content provided for in Article 6(1) thereof. The applicant, as an ‘interested party’ within the meaning of Article 1(h) of that regulation (see paragraphs 24 and 26 above), would have the opportunity to make its observations after having analysed those decisions. It would then be in a position to exercise its procedural rights in a much more relevant and informed manner than during the preliminary examination procedure (see, to that effect and by analogy, judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 52). In particular, if the Court were to annul the contested decisions, on the ground that there were serious difficulties as to the overcompensation which might result from the cumulation at issue, the applicant could, during the formal investigation procedure following that annulment, submit observations to the Commission on the changes which would have to be made to the schemes at issue in order for those schemes to be declared compatible with the internal market.
42
In those circumstances, it must be held that the applicant has an interest in bringing proceedings for annulment of the contested decisions.
43
The applicant’s interest in bringing proceedings is not called into question by the case-law relied on by the Commission (orders of 9 July 2007, wheyco v Commission, T‑6/06, not published, EU:T:2007:202, paragraph 104, and of 25 March 2019, Abaco Energy and Others v Commission, T‑186/18, not published, EU:T:2019:206, paragraph 83). According to that case-law, the interest in bringing proceedings of an undertaking which benefits from State aid authorised by the Commission without initiating the formal investigation procedure cannot be based on the fact that, if that procedure had been initiated, it would have been able to submit comments.
44
The applicant is only a potential beneficiary of the aid provided for by the schemes at issue, since it is no longer in a position to sell biogas in Sweden. In that regard, it argues that this is not a commercial choice on its part, but a consequence of the conditions which now prevail on that market. Its situation is therefore different from that of the applicants in the cases giving rise to the orders relied on by the Commission, which were current beneficiaries of the aid authorised by the decisions to which their actions related.
45
Nor is the applicant’s interest in bringing proceedings called into question by the decisions referred to in paragraph 43 above, in so far as Court held that the applicants’ interest in bringing proceedings could not derive from the infringement of their procedural rights. In those cases, the applicants, while benefiting from the aid declared compatible by the decisions at issue, sought, by their actions, to obtain the annulment of those decisions in order that the Commission would subsequently authorise aid having a broader scope (see, to that effect, orders of 9 July 2007, wheyco v Commission, T‑6/06, not published, EU:T:2007:202, paragraph 102, and of 25 March 2019, Abaco Energy and Others v Commission, T‑186/18, not published, EU:T:2019:206, paragraph 82).
46
In the present case, the applicant, by its action, is not seeking to obtain authorisation for aid having a broader scope than that of the aid provided for by the schemes at issue. On the contrary, in the event that the Commission, at the end of the formal investigation procedure which it would initiate after any annulment of the contested decisions, were to consider that the overcompensation which may be available to certain biogas producers not established in Sweden renders the schemes at issue incompatible with the internal market, the modification of those schemes would be intended to limit their scope and not to extend it.
47
Moreover, as is clear from paragraph 39 above, in paragraph 42 of the order of 25 March 2019, Abaco Energy and Others v Commission (T‑186/18, not published, EU:T:2019:206), the Court pointed out that a beneficiary of aid does not necessarily have no interest in bringing an action against a decision declaring that aid compatible with the internal market.
48
In the light of the foregoing, it must be concluded that the applicant’s interest in bringing proceedings is established and that its action is admissible, at least in so far as, by that action, it raises the complaint relating to the cumulation at issue.
49
Before examining the merits of that complaint, however, it is necessary to rule on the Commission’s argument alleging, in essence, that the applicant did not raise a plea of illegality against the EPE Guidelines, in the light of which, in particular paragraph 116 thereof, the Commission examined the compatibility of the schemes at issue (see paragraph 10 above).
The Commission’s argument based on the need to comply with paragraph 116 of the EPE Guidelines
50
According to the Commission, the EPE Guidelines do not allow any role to be attributed to the cumulation at issue for the purpose of assessing the compatibility of the schemes at issue. Accordingly, since it did not rely on the illegality of the EPE Guidelines, the applicant cannot challenge, before the Court, the failure to take that cumulation into account in the contested decisions.
51
It must be recalled that, according to the case-law, the Commission, in adopting guidelines containing rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, imposes a limit on the exercise of its discretion and, in principle, cannot depart from those rules without being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (judgments of 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraph 69, and of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 143).
52
Paragraph 116 of the EPE Guidelines states that ‘the Commission presumes the appropriateness of aid and the limited distortive effects of the aid provided all other conditions are met’. However, that paragraph does not specify the ‘other conditions’ to which reference is made.
53
In that regard, as the Commission stated at the hearing, it must be concluded that the other conditions referred to in paragraph 116 of the EPE Guidelines are, in the present case, those set out in paragraph 131 of those guidelines and that the examination of compliance with those conditions includes an assessment of the proportionality of the aid, as referred to in paragraphs 69 and 70 of those guidelines.
54
It must be recalled that paragraph 116 of the EPE Guidelines falls under Chapter 3 of those guidelines, which is concerned with the ‘Compatibility assessment under Article 107(3)(c) [TFEU]’.
55
Within Chapter 3, Section 3.1 sets out ‘common assessment principles’ and lists, in paragraph 27, the cumulative criteria which an aid measure must fulfil in order to be declared compatible with the internal market. Those criteria include, as stated in paragraph 27(e) of those guidelines, proportionality of the aid, that is to say that the aid must be limited to the minimum needed.
56
Section 3.2 of the EPE Guidelines, concerned with ‘general compatibility provisions’, contains clarifications as to the criteria set out in paragraph 27 of those guidelines.
57
In particular, Section 3.2.5 of the EPE Guidelines relates to the ‘proportionality of the aid’. That section includes paragraphs 69 and 70, according to which ‘aid is considered to be proportionate if the aid amount per beneficiary is limited to the minimum needed to achieve the … objective aimed for’ and, ‘as a general principle, aid will be considered to be limited to the minimum necessary if the aid corresponds to the net extra cost necessary to meet the objective, compared to the counterfactual scenario in the absence of aid’.
58
It follows that the ‘other conditions’ referred to in paragraph 116 of the EPE Guidelines include the condition relating to the proportionality of the aid. That condition is closely linked to the condition relating to the absence of overcompensation. Moreover, without being expressly referred to, the latter concept is covered, in particular, by paragraph 131 of those guidelines, which reads as follows:
‘For energy from renewable sources other than electricity, operating aid will be considered compatible with the internal market if the following cumulative conditions are met:
(a)
the aid per unit of energy does not exceed the difference between the total levelised costs of producing energy (‘LCOE’) from the particular technology in question and the market price of the form of energy concerned;
(b)
the LCOE may include a normal return on capital. Investment aid is deducted from the total investment amount in calculating the LCOE;
(c)
the production costs are updated regularly, at least every year; and
(d)
aid is only granted until the plant has been fully depreciated according to normal accounting rules in order to avoid that operating aid based on LCOE exceeds the depreciation of the investment.’
59
It must be observed that paragraph 131 of those guidelines was reproduced in recital 50 of each of the contested decisions, with the addition, in brackets, of the words ‘no overcompensation’ after the definition of the condition set out in paragraph 131(a) thereof.
60
It must be observed that the EPE Guidelines do not specify that the only overcompensation which must be avoided in order for aid to be proportionate is that which is liable to result from the cumulation of aid from one and the same Member State. Accordingly, the Commission is wrong to argue that the EPE Guidelines preclude it from examining the overcompensation which is liable to result from the cumulation at issue when assessing the compatibility of the tax exemptions at issue with the internal market.
61
Consequently, paragraph 116 of the EPE Guidelines did not release the Commission from the obligation to examine whether the overcompensation which might result from the cumulation at issue, relied on by the applicant, raised serious difficulties, in order to satisfy itself that the schemes at issue were proportionate. The fact that the applicant did not raise a plea of illegality against that provision is therefore irrelevant in the present case.
62
Accordingly, the Commission’s present argument must be dismissed and the complaint relating to the cumulation at issue must be examined on its merits.
The merits of the complaint relating to the cumulation at issue
63
After recalling the principles relating to the judicial review by the Court of the existence of serious difficulties, it will be necessary to examine the information which was or could have been available to the Commission in the present case, the existence of serious difficulties relating to overcompensation and, lastly, the line of argument of the Commission and the Kingdom of Sweden that the schemes at issue cannot take account of aid granted by other Member States, on the ground that to do so would breach the principle of non-discrimination or Article 110 TFEU.
The judicial review by the Court of the existence of serious difficulties
64
According to the case-law, the lawfulness of a decision not to raise objections, 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 procedure for the measure notified should objectively have raised doubts as to the compatibility of an aid measure with the internal market, given that, if such doubts exist, those 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 and by analogy, judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 38 and the case-law cited). That obligation is confirmed by Article 4(4) of Regulation 2015/1589, according to which the Commission is required to initiate the formal investigation procedure where doubts are raised as to the compatibility with the internal market of the measure at issue, without having any margin of discretion in that regard (see, to that effect and by analogy, judgment of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraphs 113 and 185 and the case-law cited; order of 25 June 2019, Fred Olsen v NavieraArmas, C‑319/18 P, not published, EU:C:2019:542, paragraph 30, and judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 57).
65
Evidence of the existence of doubts as to the compatibility of the aid at issue with the internal market, 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 (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 40 and the case-law cited).
66
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 (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 41 and the case-law cited).
67
In addition, the lawfulness of a decision not to raise objections 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).
68
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 referred to in paragraph 64 above and which could have been obtained, upon request by the Commission, during the administrative procedure (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 43 and the case-law cited).
69
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 (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 44 and the case-law cited).
70
It follows that the review by the Court of the legality of a decision not to initiate the formal investigation procedure on account of the absence of serious difficulties will go beyond simple consideration of whether or not there has been a manifest error of assessment. A decision adopted by the Commission without initiating the formal investigation procedure may be annulled, because of the failure to initiate the inter partes and detailed investigation required under Article 108(2) TFEU, even if it is not established that the Commission’s assessments as to the substance were wrong in law or in fact (see, to that effect, judgment of 15 October 2020, První novinová společnost v Commission, T‑316/18, not published, EU:T:2020:489, paragraphs 88, 90 and 91 and the case-law cited). The review carried out by the Court is therefore not limited (see, to that effect, judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 66).
The information which was or could have been available to the Commission in the present case
71
It must be observed that, as an annex to its letter to the Commission of 18 October 2019, which primarily concerned the aid for energy production from biogas granted by the Kingdom of Denmark, the applicant produced a study which pointed out that the geographical market for biogas was now transnational and included, at the very least, Denmark, Sweden, Germany and the United Kingdom. That study further stated that biogas could be supported both by aid for its production and by measures to promote demand, such as tax exemptions. It was noted that while those different forms of support could co-exist in a single Member State, they could not be applied concurrently at national level. Thus, according to that study, in Germany energy generated from biogas which received production aid could not benefit from other aid for the sale of renewable energy. However, that study pointed out that cumulation could occur and result in a ‘double subsidy’ or ‘excessive support’, where production aid and tax exemptions were granted by separate Member States. That study also indicated that overlaps between aid schemes adopted by different Member States could lead to overcompensation and result in a distortion of competition. The example provided in that respect specifically concerned the Danish and Swedish aid.
72
Similarly, in its letter to the Commission of 19 June 2020, which concerned the Danish aid, the applicant nevertheless emphasised the link between that aid and the tax exemptions granted by Sweden. It referred specifically to the decisions by which the Commission had approved the Swedish aid schemes that had been extended, with minor adjustments, by the contested decisions. Moreover, the study annexed to that letter contained information similar to that set out in the study referred to in paragraph 71 above.
73
In those circumstances, it must be observed that, prior to the adoption of the contested decisions, the applicant had provided the Commission with information concerning the possible effects of a cumulation of the tax exemptions granted by the Kingdom of Sweden with the aid for energy production from biogas granted by other Member States, in particular by the Kingdom of Denmark.
74
Furthermore, as confirmed by the Kingdom of Sweden at the hearing, in response to a question from the Court, the fact that energy production from biogas benefited from aid granted by the Kingdom of Denmark was common knowledge. In addition, the Kingdom of Sweden acknowledges that, in a Government decree of 31 May 2018, produced before the Court by the applicant, it was stated that aid for energy production from biogas granted by the Kingdom of Denmark, when combined with the tax exemptions in question, could give rise to a worsening of conditions of competition for biogas production in Sweden. In that regard, as is apparent from two reports annexed to the application and as confirmed by the Commission in its reply to a written question from the Court, from October 2018 the Kingdom of Sweden granted production aid to biogas producers established in its territory because producers established in other Member States could benefit from the cumulation at issue.
75
Accordingly, when the contested decisions were adopted, the Commission had at its disposal information on the cumulation at issue.
76
In that regard, the Commission, in order to establish that it was not required to take into account information relating to the cumulation at issue, cannot rely on the fact that the applicant did not submit a complaint, under Article 24(2) of Regulation 2015/1589, prior to the adoption of the contested decisions.
77
It should be recalled that Article 24(2) of Regulation 2015/1589 is worded as follows:
‘2.   Any interested party may submit a complaint to inform the Commission of any alleged unlawful aid or any alleged misuse of aid. To that effect, the interested party shall duly complete a form that has been set out in an implementing provision referred to in Article 33 and shall provide the mandatory information requested therein.
Where the Commission considers that the interested party does not comply with the compulsory complaint form, or that the facts and points of law put forward by the interested party do not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid or misuse of aid, it shall inform the interested party thereof and call upon it to submit comments within a prescribed period which shall not normally exceed 1 month. If the interested party fails to make known its views within the prescribed period, the complaint shall be deemed to have been withdrawn. The Commission shall inform the Member State concerned when a complaint has been deemed to have been withdrawn.
The Commission shall send a copy of the decision on a case concerning the subject matter of the complaint to the complainant.’
78
Accordingly, Article 24(2) of Regulation 2015/1589 concerns aid which either is alleged to be ‘unlawful’, within the meaning of Article 1(f) of that regulation, in that it has been put into effect in breach of Article 108(3) TFEU, under which any proposed aid measure must be notified to the Commission and may not be put into effect before a final decision of the Commission, or is alleged to have been ‘misuse[d]’ for the purposes of Article 1(g) of that regulation, in that it is aid used by beneficiaries in contravention of the Commission decision declaring that aid compatible with the internal market.
79
It is solely with respect to such aid, as defined in Article 1 of Regulation 2015/1589, that Article 24(2) of that regulation, read in conjunction with Article 12(1) thereof, grants an interested party the right to set in motion the preliminary examination procedure, by sending a complaint containing information regarding such aid to the Commission, on a specific form, which the Commission is obliged to examine in the context of a procedure under which certain rights are conferred on the complainant (see, to that effect, judgment of 14 May 2019, Marinvest and Porting v Commission, T‑728/17, not published, EU:T:2019:325, paragraphs 38 to 40; see also, to that effect and by analogy, judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 37).
80
According to the case-law, where such a complaint has been submitted, the Commission may, in certain circumstances, be required to investigate a complaint by going beyond merely examining the matters of fact and law brought to its knowledge by the complainant. The Commission is required, in the interests of sound administration of the fundamental rules of the Treaty relating to State aid, to conduct a diligent and impartial examination of the complaint which may make it necessary for the Commission to examine elements that were not expressly put forward by the complainant (see judgment of 15 March 2018, Naviera Armas v Commission, T‑108/16, EU:T:2018:145, paragraph 101 and the case-law cited).
81
However, the present case is concerned not with the aid or the detailed rules for the application of aid referred to in Article 24(2) of Regulation 2015/1589, but with aid which was duly notified to the Commission by the Kingdom of Sweden and the application of which in accordance with the contested decisions is not contested in the present case.
82
Consequently, since Article 24(2) of Regulation 2015/1589 is not applicable, the case-law referred to in paragraph 80 above is irrelevant in the present case.
83
Nonetheless, the Commission was required, in accordance with the case-law referred to in paragraphs 67 to 69 above, to base its analysis on the information which was or could have been available to it, which is not limited to the information presented in a complaint within the meaning of Article 24(2) of Regulation 2015/1589.
84
Furthermore, although it is not 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 (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 45 and the case-law cited), in the present case, the applicant had sent information to the Commission concerning the effects of the cumulation of the tax exemptions granted by the Kingdom of Sweden with the aid for energy production from biogas granted by other Member States, in particular by the Kingdom of Denmark.
85
In the light of the foregoing, it must be held that the Commission, when it examined the schemes at issue, had information available to it on the likely effects of the cumulation at issue. Moreover, the Commission could, if necessary, have had at its disposal additional information which it could have asked the applicant to provide.
86
However, as the Commission pointed out at the hearing, it must be determined whether the information contained in the applicant’s letters and in the studies annexed thereto was relevant in assessing the compatibility of the schemes at issue with the internal market. Accordingly, it must be determined whether that information, relating to possible overcompensation, was likely to reveal the existence of serious difficulties in determining such compatibility. Only if the answer is in the affirmative should it be concluded that the Commission was required to initiate the formal investigation procedure (see, to that effect and by analogy, judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 85).
The existence of serious difficulties relating to overcompensation
87
It follows from the main findings of the contested decisions relating to overcompensation, summarised in paragraph 9 above, that, in the Commission’s view, it was necessary, in order for the schemes at issue to be declared compatible with the internal market, for the tax exemptions in question not to give rise to overcompensation.
88
However, the contested decisions do not specify whether the overcompensation concerned stems solely from possible cumulation of the tax exemptions in question with other aid granted by the Kingdom of Sweden or may also derive from the cumulation at issue.
89
The Commission explained that, when examining the overcompensation, it had confined itself to examining the possible cumulation of the tax exemptions in question with other aid measures adopted by the Kingdom of Sweden. According to the Commission, taking additional account of any aid granted in another Member State is provided for neither by the EPE Guidelines nor by other provisions of EU law, for the purpose of examining whether the beneficiaries of those exemptions are overcompensated.
90
The Kingdom of Sweden, for its part, stated that the reports of the Swedish Energy Agency, on which the Commission relied to exclude the existence of overcompensation in the contested decisions, indirectly take account of the aid granted by the Kingdom of Denmark. However, in response to the Court’s written and oral questions, the Kingdom of Sweden explained that the verification by the Swedish Energy Agency that there was no overcompensation was carried out at national level and that there was no obligation to take account of any production aid granted by other Member States which could have benefited biogas imported into Sweden.
91
Consequently, it must be held that, for the purpose of adopting the contested decisions, the Commission examined only the overcompensation which is liable to result from the cumulation of several aid measures granted by the Kingdom of Sweden. In so doing, the Commission excluded the possibility that the cumulation at issue might give rise to serious difficulties in determining the compatibility of the schemes at issue with the internal market, a question which it would have been possible to shed light on only in the formal investigation procedure. It is therefore necessary to ascertain whether the exclusion of that possibility is justified.
92
It should be recalled that, according to Article 107(1) TFEU:
‘Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.’
93
According to Article 107(3) TFEU:
‘The following may be considered to be compatible with the internal market:
…
(c)
aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest.’
94
It follows that the Commission, before deciding whether State aid is compatible with the internal market under Article 107(3)(c), is obliged to examine the effects of such aid on trade between Member States. In particular, where, as in the present case, the Commission adopts decisions based on that provision at the end of the preliminary examination procedure, it must be in a position to conclude, without that issue raising serious difficulties, that the relevant aid will not affect trade between Member States.
95
In the contested decisions, adopted pursuant to Article 4(3) of Regulation 2015/1589, the Commission reached the conclusion that it should not raise any objections to the schemes at issue, which were an extension of schemes already considered compatible with the internal market on the basis of Article 107(3)(c) TFEU.
96
However, the Commission, if only as a result of the information submitted to it by the applicant (see paragraphs 71 to 73 above), must have been aware that imports into Sweden of biogas produced in other Member States, in particular Denmark, had increased significantly in the years preceding notification of the schemes at issue, to the detriment of biogas from other Member States, on account of the existence of the cumulation at issue.
97
Consequently, even if the schemes at issue did not contain fundamental alterations affecting the schemes which had been in force in Sweden for several years, the Commission had to take into account, in its assessment of the compatibility of the schemes at issue with the internal market, the impact of the cumulation at issue on the growing importance of imports from certain Member States.
98
It is true that the Commission did not disregard that information, since it emphasised the need for the schemes at issue to apply equally to biogas produced in Sweden and to imported biogas. However, its examination of the existence of possible overcompensation was confined to the domestic sphere, as noted in paragraph 89 above.
99
In accordance with the case-law referred to paragraph 66 above, if the analysis carried out by the Commission during the preliminary examination procedure as regards the overcompensation which is liable to result from the cumulation at issue is insufficient or incomplete, this is an indication of the existence of serious difficulties. As is apparent from paragraphs 55 to 59 above, on the one hand, State aid cannot be declared compatible with the internal market if it does not comply with the condition of proportionality. On the other hand, in the contested decisions, the question of the absence of overcompensation is closely linked to that of the proportionality of the schemes at issue. Accordingly, the fact that the Commission analysed the absence of overcompensation in an insufficient and incomplete manner, in that it did not take account of the cumulation at issue, may suffice, in the present case, to establish the existence of serious difficulties.
100
Nevertheless, it must be concluded that, if, as the Commission and the Kingdom of Sweden submit, the schemes at issue cannot take account of aid granted by other Member States, on the ground that to do so would breach the principle of non-discrimination or Article 110 TFEU, the issue of the overcompensation which is liable to result from the cumulation at issue would not give rise to serious difficulties.
101
It must be recalled that, according to the case-law, while the procedure provided for in Articles 107 and 108 TFEU leaves a margin of discretion to the Commission to come to a decision on the compatibility of a system of State aid with the requirements of the internal market, it is clear from the general scheme of the Treaties that that procedure must never produce a result which is contrary to general principles of EU law, such as the principle of equal treatment, or to the specific provisions of the Treaties, inter alia those concerning internal taxation, which include Article 110 TFEU (see, to that effect, judgments of 23 April 2002, Nygård, C‑234/99, EU:C:2002:244, paragraph 54 and the case-law cited; of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraphs 50 and 51 and the case-law cited, and of 9 September 2010, British Aggregates and Others v Commission, T‑359/04, EU:T:2010:366, paragraph 91 and the case-law cited). In addition, aid cannot be implemented or approved in the form of tax discrimination, by a Member State, in respect of products originating from other Member States (see, to that effect, judgment of 9 September 2010, British Aggregates and Others v Commission, T‑359/04, EU:T:2010:366, paragraph 92 and the case-law cited).
The principle of non-discrimination
102
The principle of non-discrimination or the principle of equal treatment prohibits comparable situations being treated differently or different situations being treated in the same way, unless such difference in treatment is objectively justified (see judgment of 11 July 2019, IPPT PAN v Commission and REA, T‑805/16, not published, EU:T:2019:496, paragraph 216 and the case-law cited; see also, to that effect, judgments of 16 December 2008, Arcelor Atlantique and Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 23 and the case-law cited, and of 27 September 2012, Koninklijke BAM Groep v Commission, T‑355/06, not published, EU:T:2012:486, paragraph 49 and the case-law cited).
103
The comparability of different situations must be assessed with regard to all the elements which characterise them. These elements must in particular be determined and assessed in the light of the subject matter and purpose of the State measure which makes the distinction in question. The principles and objectives of the field to which the State measure relates must also be taken into account (see, by analogy, judgment of 12 May 2011, Luxembourg v Parliament and Council, C‑176/09, EU:C:2011:290, paragraph 32 and the case-law cited).
104
In the present case, the Commission considers that it ensured that the schemes at issue comply with the principle of non-discrimination, in that it obtained a guarantee from the Kingdom of Sweden that the tax exemptions in question apply irrespective of the origin of the biogas sold in Sweden, whether it is the biogas produced in that Member State or the biogas produced in other Member States and imported into Sweden.
105
However, it must be held that, in the light of the objective of the schemes at issue, the sale of biogas for which the additional production costs have been compensated is not a situation comparable to that of the sale of biogas for which the additional production costs have not yet been compensated.
106
As is apparent from the contested decisions (see paragraph 8 above), the tax exemptions in question are intended to make biogas competitive with fossil gases, despite the fact that the production costs of biogas are higher than those of fossil gases.
107
However, where the production costs of biogas – higher than those of fossil gas – have already been compensated for by aid granted by the Member State in whose territory the biogas was produced, granting the tax exemptions in question to biogas imported into Sweden loses its raison d’être.
108
It follows from the contested decisions that the Commission acknowledges that there is a difference between the sale of biogas for which the additional production costs have been compensated and the sale of biogas for which the additional production costs have not yet been compensated. In the case of biogas produced in Sweden, the Commission satisfied itself that there was no overcompensation resulting from cumulation of the tax exemptions in question with other aid granted by the Swedish authorities to biogas production in that Member State. However, the difference between the situation in which biogas for which the additional costs have already been compensated and the situation in which the additional costs of biogas have not yet been compensated exists even where such compensation stems from aid granted by Member States other than the Kingdom of Sweden.
109
Consequently, in the absence of objective justification, the two types of sales referred to paragraph 105 above cannot be treated in the same way, consisting in granting the same tax exemption to both, irrespective of whether the biogas sold in Sweden was produced on national territory or imported.
110
In the contested decisions, the Commission did not take into account the overcompensation which is liable to result from the cumulation at issue. Thus, it failed to apply the principle of non-discrimination by taking into account all the relevant elements characterising the ‘situations’ which it is necessary, in accordance with that principle, to compare. According to the case-law recalled in paragraphs 64 and 66 above and in accordance with the findings set out in paragraph 99 above, this circumstance reveals the existence of serious difficulties which give rise to the obligation on the part of the Commission to initiate the formal investigation procedure.
111
Moreover, even if, as the Commission argues, it is impossible from a factual point of view to examine the overlaps between the aid schemes provided for in one Member State and those in force in other Member States, it must be pointed out that, as the Commission acknowledged at the hearing, the contested decisions make no reference to that impossibility. A fortiori, they do not refer to it as an objective justification.
112
Accordingly, it must be held that the need to comply with the principle of non-discrimination did not make it possible to rule out the existence of serious difficulties as to the impact of the cumulation at issue on the compatibility of the schemes at issue with the internal market.
Article 110 TFEU
113
As noted in paragraph 100 above, it must be determined whether, as the Commission and Sweden argue, Article 110 TFEU precludes the schemes in question from taking account of aid granted by other Member States.
114
According to Article 110 TFEU:
‘No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.
Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.’
115
According to the case-law, first, it follows from Article 110 TFEU that differentiation in the field of internal taxation is compatible with EU law only if it pursues objectives which are themselves compatible with that law, and if the detailed rules are such as to avoid any form of discrimination, direct or indirect, against imports from other Member States or any form of protection of competing domestic products. Thus, in accordance with those requirements, in its present state of development EU law does not restrict the freedom of each Member State to establish a tax system which differentiates between certain products, even products which are similar within the meaning of the first paragraph of Article 110 TFEU, on the basis of objective criteria, such as the nature of the raw materials used or the production processes employed (see, by analogy, judgments of 2 April 1998, Outokumpu, C‑213/96, EU:C:1998:155, paragraph 30, and of 14 April 2021, Achema and Lifosa v Commission, T‑300/19, not published, EU:T:2021:191, paragraph 220).
116
Second, the power to use certain forms of tax relief, particularly when they are aimed at enabling the maintenance of forms of production or undertakings which, without those tax advantages, would not be profitable due to the increase in production costs, is subject to the condition that the Member States using that power extend the benefit thereof in a non-discriminatory and non-protective manner to imported products in the same situation, in compliance with Article 110 TFEU (see, to that effect, judgment of 9 September 2010, British Aggregates and Others v Commission, T‑359/04, EU:T:2010:366, paragraphs 93 to 95 and the case-law cited).
117
Third, the requirements of Article 110 TFEU are fulfilled where the legislation of a Member State makes it possible to apply to the imports of goods from another Member State tax arrangements which may be considered as equivalent to the arrangements applied to those goods when they are produced in the first Member State (see, to that effect, judgment of 30 October 1980, Schneider-Import, 26/80, EU:C:1980:257, paragraphs 10 and 15).
118
It follows that, where the sale, in a Member State, of similar domestic or imported products would not be profitable in the absence of tax advantages, the first paragraph of Article 110 TFEU precludes imported products from being discriminated against, directly or indirectly, by comparison with domestic products, in that they are subject to higher taxation than that applied to domestic products. By contrast, differentiated tax treatment is compatible with that provision where such treatment is the result of objective criteria and makes it possible to avoid any form of discrimination against imports from other Member States.
119
For the purpose of applying those principles to the present case, it must be observed that a particular feature of this case, by comparison with the situations referred to in the case-law, is that all biogas sold in Sweden, whether produced in or imported into that Member State, benefits from the same tax exemptions. Moreover, in the case of imported biogas, those exemptions, which are total, are granted without any distinction being made on the basis of whether or not the Member State in which that biogas was produced has granted aid for energy production from biogas.
120
For reasons relating to the requirements of EU law applicable to State aid, the Commission satisfied itself that biogas produced in Sweden was not overcompensated (see paragraph 108 above). Consequently, the Commission cannot maintain that biogas imported from other Member States would be subject to discrimination prohibited by Article 110 TFEU if it benefitted from the tax exemptions in question solely on condition that any overcompensation resulting from the cumulation of those exemptions and any aid granted by other Member States to producers of that biogas, before it was exported to Sweden, is excluded. That condition, which is connected with the absence of overcompensation, is similar to that laid down for biogas produced in Sweden.
121
It is true that, in order to avoid any overcompensation, biogas imported from certain Member States could then be subject to domestic taxation in Sweden which, because it provides for no tax exemption or provides for smaller exemptions than those in question, would be higher than the taxation on biogas produced in Sweden. However, that outcome would not necessarily be discriminatory. As regards biogas produced in Sweden, the Commission sought to exclude, before concluding that the schemes at issue were compatible with the internal market, the possibility that the cumulation of fiscal aid and production aid could give rise to overcompensation.
122
In other words, the existence of overcompensation may be regarded as an objective criterion allowing the tax exemptions in question to be applied only to biogas, whether domestic or imported, the additional production costs of which as compared with fossil gases have not already been compensated for by other aid, irrespective of the Member State which granted that other aid and without prejudice to the possibility of adjusting the rate of the tax exemptions in question according to the level of that other aid. That differentiation, based on an objective criterion, is such as to avoid the discrimination which would result from compensation already granted to biogas imported from certain Member States.
123
Furthermore, it must be recalled that, according to the case-law, a system of taxation has a discriminatory and protective effect contrary to Article 110 TFEU when it discourages the purchase of products from other Member States so as to benefit domestic products (see, to that effect, judgment of 5 April 1990, Commission v Greece, C‑132/88, EU:C:1990:165, paragraphs 18 and 19).
124
It is common ground that this is not the case with the schemes at issue. In fact, in the absence of any measures to avoid the overcompensation that may result from the cumulation at issue, the schemes at issue give rise to reverse discrimination against biogas produced in Sweden in favour of biogas produced in other Member States that grant aid for energy production from biogas. That outcome cannot be regarded as being imposed by the requirement that the schemes at issue comply with Article 110 TFEU, the rationale of which is to prevent a Member State from favouring its own production to the detriment of that of other Member States. Moreover, it must be observed that that article does not apply where a Member State grants more favourable tax treatment to products which it imports from certain Member States than it grants to similar products which it imports from other Member States.
125
It must be observed that, in the parts of the contested decisions concerning compliance with EU tax law (see paragraph 11 above), the Commission found that the schemes at issue did not give rise to overcompensation and that the tax exemptions in question were applicable irrespective of the origin of the biogas. It follows that the Commission did not consider that there were any serious difficulties in that regard, whereas the reasoning set out in paragraphs 115 to 124 above demonstrate that such difficulties existed and had to be examined in the context of the formal investigation procedure.
126
Accordingly, it must be held that the need to comply with Article 110 TFEU did not make it possible to rule out the existence of serious difficulties as to the impact of the cumulation at issue on the compatibility of the schemes at issue with the internal market.
Conclusions concerning the complaint relating to the cumulation at issue
127
In the light of all the foregoing considerations, it must be held that the applicant has demonstrated, on the basis of the information which was or could have been available to the Commission when the contested decisions were adopted, that the analysis of the compatibility of the schemes at issue with the internal market on the basis of Article 107(3)(c) TFEU gave rise to serious difficulties linked to the overcompensation which is liable to result from the cumulation at issue, in the light of the principle of non-discrimination and Article 110 TFEU. It follows that the Commission should have examined those difficulties in the context of the formal investigation procedure, rather than adopting the contested decisions at the end of the preliminary examination procedure.
128
Since those serious difficulties concern a principle and a provision of primary law, there is no need to rule on the arguments of the Commission and the Kingdom of Sweden relating to the fact that taking account of the overcompensation which is liable to result from the cumulation at issue is contrary to several acts of secondary law which prohibit the fixing of different rates of tax on products from different Member States.
129
Consequently, the complaint relating to the cumulation at issue must be upheld and the contested decisions must be annulled, without it being necessary to rule on the other complaints raised by the applicant.
Costs
130
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 Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
131
Under Article 138(1) of the Rules of Procedure, the Member States which intervene in the proceedings are to bear their own costs. The Kingdom of Sweden must therefore bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber, Extended Composition)
hereby:
1.
Annuls Commission Decision C(2020) 4489 final of 29 June 2020 on State aid SA.56125 (2020/N – Sweden – Prolongation and modification of scheme SA.49893 (2018/N) – Tax exemption for non-food based biogas and bio-propane in heat generation;
2.
Annuls Commission Decision C(2020) 4487 final of 29 June 2020 on State aid SA.56908 (2020/N) – Sweden – Prolongation and modification of biogas scheme for motor fuel in Sweden;
3.
Orders the European Commission to bear its own costs and to pay those incurred by Landwärme GmbH;
4.
Orders the Kingdom of Sweden to bear its own costs.
da Silva Passos
Valančius
Reine
Truchot
Sampol Pucurull
Delivered in open court in Luxembourg on 21 December 2022.
[Signatures]
(
*1
)	Language of the case: German.