JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
14 April 2021 (*)
(State aid – Market in electricity generated from renewable energy sources – Operating aid – Decision declaring the aid scheme compatible with the internal market at the end of the preliminary examination stage – Article 107(3)(c) TFEU – Infringement of procedural rights – 2008 Guidelines on State aid for environmental protection – 2014 Guidelines on State aid for environmental protection and energy 2014-2020 – Article 30 TFEU – Article 110 TFEU – Body of consistent evidence)
In Case T‑300/19,
Achema AB, established in Jonava (Lithuania),
Lifosa AB, established in Kedainiai (Lithuania),
represented by E. Righini and N. Solárová, lawyers,
applicants,
v
European Commission, represented by K. Herrmann and P. Němečková, acting as Agents,
defendant,
supported by
Republic of Lithuania, represented by K. Dieninis and R. Dzikovič, acting as Agents,
intervener,
APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2018) 9209 final of 8 January 2019 on State aid SA.45765 (2018/NN), concerning an aid scheme implemented by the Republic of Lithuania in support of producers of electricity from renewable energy sources (OJ 2019 C 61, p. 1),
THE GENERAL COURT (Tenth Chamber),
composed of A. Kornezov (Rapporteur), President, E. Buttigieg and K. Kowalik-Bańczyk, Judges,
Registrar: J. Palacio González, Administrator,
having regard to the written part of the procedure and further to the hearing on 9 October 2020,
gives the following
Judgment
I.      Background to the dispute
1        On 27 January 2016, the applicants in the present case, Achema AB and Lifosa AB, as well as Orlen Lietuva AB and the Lithuanian Confederation of Industrialists lodged a formal complaint with the European Commission (‘the 2016 complaint’) concerning, inter alia, alleged unlawful aid granted by the Republic of Lithuania to producers of electricity produced from renewable energy sources (‘RES’). The Commission forwarded the 2016 complaint to the Lithuanian authorities and they submitted their observations in that regard on 25 July 2016.
2        On 27 June 2016, the Republic of Lithuania pre-notified to the Commission a support measure for power plants generating electricity from RES in Lithuania. That Member State submitted additional information in that connection on 21 November 2016.
3        On 3 March 2017, the applicants and Orlen Lietuva (together ‘the complainants’) lodged a complaint with the Commission seeking to supplement the 2016 complaint and concerning several measures adopted by the Republic of Lithuania in the electricity sector (‘the 2017 supplementary complaint’). The Commission forwarded the 2017 supplementary complaint to the Lithuanian authorities, which submitted their observations on 27 April 2017.
4        On 15 May 2017, a meeting took place between the complainants and the Commission on the subject of the proposals which the Republic of Lithuania had in the meantime communicated to the Commission with a view to addressing certain issues raised in the 2016 complaint and the 2017 supplementary complaint (together ‘the complaints’). The complainants submitted their written position on those proposals to the Commission in a memorandum of 30 May 2017.
5        On 15 January 2018, the complainants submitted additional information to the Commission concerning certain new developments in the electricity sector in Lithuania.
6        On 21 February 2018, a new meeting between the complainants and the Commission was held.
7        The Commission requested complementary information from the Lithuanian authorities by letters of 15 March, 8 May, 10 July and 24 October 2018, to which those authorities replied by letters of 10 April, 31 May, 24 August and 12 November 2018, respectively.
8        On 20 November 2018, the Republic of Lithuania notified to the Commission, in accordance with Article 108(3) TFEU, a measure supporting power plants generating electricity from RES in Lithuania.
9        On 22 November 2018, the Commission informed the complainants that it was going to examine the arguments raised in the complaints as part of the case SA.45765 (2018/NN) on the measure notified by the Republic of Lithuania on 20 November 2018.
10      On 8 January 2019, the Commission adopted Decision C(2018) 9209 final on State aid SA.45765 (2018/NN) concerning an aid scheme implemented by the Republic of Lithuania in support of producers of electricity from RES, a summary of which was published in the Official Journal of the European Union (OJ 2019 C 61, p. 1; ‘the contested decision’). The contested decision is a decision not to raise objections within the meaning of 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).
11      In the first place, in recitals 9 to 56 of the contested decision, the Commission provided a description of the support scheme for producers of electricity from RES (‘the RES aid scheme’).
12      First, in 2011, the Republic of Lithuania adopted Lietuvos Respublikos atsinaujinančių išteklių energetikos įstatymo Nr. XI-1375 (Law No XI-1375 on renewable energy sources) of 12 May 2011 (Žin., 2011, No 62-2936; ‘the Law on RES’), which entered into force on 31 December 2011 and under which the RES aid scheme, concerning producers of wind, solar, hydroelectric, biomass and biogas energy (together ‘RES producers’), was introduced. The aim of the support was to increase the share of energy generated from RES in gross final energy consumption in Lithuania up to 23% by 2020, in accordance with the objectives laid down in Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16).
13      The RES aid scheme provided for the following three measures:
–        a supplement on top of the purchase price of electricity consisting either in a feed-in premium equal to the difference between the maximum level of support for each RES technology, determined by auctions organised by the National Commission for Energy Control and Prices (‘the NCECP’), and the electricity market price, determined by the NCECP (‘the feed-in premium’), or, in the case of small plants, that is to say producers with an installed capacity below 30 kW, and, since 2013, below 10 kW, a feed-in tariff fixed by the NCECP (‘the feed-in tariff’);
–        compensation of power plant connection costs for producers that have been successful in auction procedures (and are eligible to receive the feed-in premium) and small plants (which receive the feed-in tariff), equal to 60% of those costs if the producer’s capacity is greater than 350 kW and 100% of those costs if it is lower than or equal to 30 kW. Since 2013, the compensation of plants with a capacity lower than 350 kW has been of 80% of those costs.
–        release from RES producers’ electricity balancing obligation, an obligation now taken over by the Transmission System Operator or the Distribution System Operator (‘TSO’ and ‘DSO’, respectively), depending on the grid connection of the RES producer in question.
14      The beneficiaries of the RES aid scheme are those RES producers that have won auction procedures organised separately for each RES technology. The winners of the auctions were the participants presenting the offer with the lowest feed-in premium. Those RES producers benefit from the three measures mentioned in paragraph 13 above. However, the amounts corresponding to the compensation of connection costs and to the release from the balancing obligation are deducted from the amount corresponding to the feed-in premium or the feed-in tariff in order to avoid any overcompensation.
15      The aid at issue is paid to RES producers for a 12-year period.
16      Secondly, in accordance with Lietuvos Respublikos Vyriausybės nutarimas Nr. 916 ‘Dėl viešuosius interesus atitinkančių paslaugų elektros energetikos sektoriuje teikimo tvarkos aprašo patvirtinimo’ (Government Resolution No 916 approving the description of the scheme for the provision of public interest services in the electricity sector) of 18 July 2012 (‘Resolution 916 on PIS’), the RES aid scheme is financed through a levy imposed on end electricity consumers on the basis of their electricity consumption (‘the PIS levy’). That levy is paid into funds dedicated to the financing of various policies in the energy sector (‘PIS funds’), including support for RES producers. Initially, the PIS levy was collected by the TSOs and DSOs and the sums collected by them were then transferred to the PIS funds, which were at that time administered by a TSO, a State-controlled undertaking. From 1 January 2013, it is another undertaking, UAB Baltpool, also State controlled, that was appointed as administrator of the PIS funds.
17      In accordance with Vyriausybės nutarimas Nr. 1157 ‘Dėl viešuosius interesus atitinkančių paslaugų elektros energetikos sektoriuje lėšų administravimo tvarkos aprašo patvirtinimo’ (Government Resolution No 1157 approving the description of the procedures for administration of PIS funds) of 19 September 2012 (‘Resolution 1157 on PIS funds’), the administrator of the PIS funds is to send final consumers invoices drawn up on the basis of their electricity consumption. Consumers pay the PIS levy to UAB Baltpool (if they are connected to the transmission grid) or to the DSO (if they are connected to the distribution grid). The sums received by UAB Baltpool and by the DSOs are then transferred to the PIS funds. The TSOs and DSOs receive compensation from the fund for the balancing costs which they incur due to the increase in the amount of electricity generated from RES.
18      Section V of Resolution 1157 on PIS funds establishes a mechanism for the award of feed-in premiums to RES producers, which operates as follows. RES producers issue an invoice, on a monthly basis, to the purchaser concerned (initially a TSO, then another State-controlled undertaking, or the DSO), indicating the price to be paid for purchased electricity which includes the amount of the feed-in premium or the feed-in tariff. The purchaser concerned, after having paid that invoice, sends an invoice to the administrator of the PIS funds, stating the price of the electricity purchased which includes the feed-in premium or the feed-in tariff. By paying that invoice, the administrator of the PIS funds compensates the purchaser for the extra cost relating to the feed-in premium or the feed-in tariff. As for those RES producers which sell electricity directly on the market, they send their invoices directly to UAB Baltpool, which, in paying the invoice, compensates them for the electricity they have generated and sold.
19      Thirdly, while, as a general rule, all electricity consumers are subject to the PIS levy for the electricity they consume, Resolution 916 on PIS nevertheless sets out, in Section V thereof, a list of exemptions (‘the exemptions from the PIS levy’), which concern (i) the volume of electricity produced by plants using RES and consumed for their own needs (that is to say, RES auto-generators), (ii) the volume of electricity necessary for ensuring a technological process of electricity production, including the combined production of heat and electricity, (iii) the volume of electricity purchased by TSOs and DSOs to compensate natural losses of electricity through the grid, (iv) the volume of electricity produced by small RES producers (with a capacity of less than 10 kW for households and less than 100 kW for legal persons) which is put into the electricity network and subsequently taken back from the grid within the same calendar year for those producers’ own consumption (the ‘volume placed in virtual storage’) and (v) the volume of electricity consumed for the purposes of data processing and internet server (hosting) services and associated activities.
20      In the second place, in recitals 57 to 81 of the contested decision, first, the Commission stated, after having examined the four cumulative conditions for the existence of State aid within the meaning of Article 107(1) TFEU, that the RES aid scheme at issue constituted State aid.
21      Second, the Commission found that the first four exemptions referred to in paragraph 19 above were prima facie selective but that they were justified by the logic and nature of the system and that they therefore did not constitute State aid, whereas the fifth exemption mentioned in paragraph 19 above constituted State aid compatible with the internal market.
22      In the third place, in recital 82 of the contested decision, the Commission found that the RES aid scheme constituted unlawful aid on the ground that it had been implemented in breach of Article 108(3) TFEU, before a decision by the Commission on its compatibility with the internal market.
23      In the fourth place, in recitals 83 to 122 of the contested decision, the Commission found the RES aid scheme to be compatible with the internal market in the light of its environmental objective, in accordance with Article 107(3)(c) TFEU.
24      In conclusion, while regretting that the Republic of Lithuania had already put the RES aid scheme into effect, in breach of Article 108(3) TFEU, the Commission decided not to raise objections to that scheme on the grounds that it was compatible with the internal market pursuant to Article 107(3)(c) TFEU.
II.    Procedure and forms of order sought
25      By application lodged at the Court Registry on 13 May 2019, the applicants brought the present action.
26      On 31 July 2019, the Commission lodged the defence.
27      On 23 October 2019, the applicants lodged their reply.
28      On 24 October 2019, the Court granted leave to the Republic of Lithuania to intervene in support of the form of order sought by the Commission.
29      On 10 December 2019, the Commission lodged the rejoinder and the Republic of Lithuania lodged its statement in intervention.
30      On 24 January 2020, the Commission informed the Court that it had no observations on the Republic of Lithuania’s statement in intervention.
31      On 27 January 2020, the applicants submitted their observations on the Republic of Lithuania’s statement in intervention.
32      The parties presented oral argument and answered the questions put to them by the Court at the hearing held on 9 October 2020.
33      The applicants claim that the Court should:
–        annul the contested decision;
–        order the Commission and ‘any intervener’ to pay the costs.
34      The Commission contends that the Court should:
–        dismiss the application;
–        order the applicants to pay the costs.
35      The Republic of Lithuania declares that it supports the form of order sought by the Commission that the application be dismissed.
III. Law
A.      Admissibility of the action
36      In support of the action, the applicants put forward on a single plea in law, alleging infringement of their procedural rights since the Commission should, in their view, have harboured doubts as to the compatibility of the RES aid scheme with EU law and, accordingly, initiated the formal investigation procedure provided for in Article 108(2) TFEU.
37      According to the case-law, if the specific status of ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589, in conjunction with the specific subject matter of the action, is conferred on an applicant, that status is sufficient to distinguish it individually, for the purposes of the fourth paragraph of Article 263 TFEU, where that action seeks, as in the case at hand, to safeguard the procedural rights available to it under Article 108(2) TFEU (see, to that effect, judgments of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 48, and of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 44).
38      In the present case, it is not disputed that the applicants are ‘interested parties’ within the meaning of Article 1(h) of Regulation 2015/1589, ‘whose interests might be affected by the granting of aid’, which thus by definition have an ‘interest’ in the opening of the formal investigation procedure leading to the adoption of a decision by the Commission and, accordingly, in view of the rejection of their complaint by the contested decision, have an interest in bringing an action against that decision adversely affecting them. It is important to point out that the applicants are the interested parties which lodged the complaint that gave rise to the Commission’s investigation and with which the Commission met on several occasions during that investigation. Similarly, the contested decision explicitly adopts a position – of rejection – on certain aspects of the support to the RES producers criticised in the complaints (see, to that effect, judgment of 15 November 2018, Deutsche Telekom v Commission, T‑207/10, EU:T:2018:786, paragraph 28). Moreover, the applicants are industrial undertakings subject to the payment of the levy financing the RES aid scheme, but also producers of electricity and heat.
39      It follows that the applicants are entitled to challenge the contested decision in their capacity as interested parties within the meaning of Article 1(h) of Regulation 2015/1589, by raising a single plea in law, alleging infringement of their procedural rights.
40      Furthermore, the Commission raises pleas of inadmissibility against certain arguments put forward by the applicants. Those pleas are examined in the context of the analysis of the said arguments below.
B.      Substance
1.      Applicable principles
41      According to the case-law, the preliminary stage provided for in Article 108(3) TFEU is intended merely to allow the Commission a sufficient period of time for reflection and investigation so that it can form a prima facie opinion on the draft aid plans notified to it, thus enabling it either to conclude, without the need for detailed examination, that the aid is compatible with the FEU Treaty or, by contrast, to make a finding that the content of those plans raises doubts as to that compatibility (see judgment of 3 May 2001, Portugal v Commission, C‑204/97, EU:C:2001:233, paragraph 34).
42      In that regard, where an applicant seeks the annulment of a decision not to raise objections on the basis of Article 263 TFEU, it essentially contests the fact that the decision taken by the Commission in relation to the contested measure was adopted without that institution initiating the formal investigation procedure, thereby infringing its procedural rights. In such an action, that party may invoke, for the purpose of safeguarding the procedural rights available to it in the context of the formal investigation procedure, only pleas capable of showing that the assessment of the information and evidence that was available to the Commission during the preliminary examination stage of the notified measure should have raised doubts as to its compatibility with the internal market (see, to that effect, judgments of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 81; of 9 July 2009, 3F v Commission, C‑319/07 P, EU:C:2009:435, paragraph 35; and of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 59), bearing in mind that the information ‘available’ to the Commission includes that which seemed relevant for the assessment to be carried out and which could have been obtained, upon request by the Commission, during the preliminary examination stage (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 71).
43      The existence of doubts such as to justify initiating the procedure laid down in Article 108(2) TFEU is reflected in the objective existence of serious difficulties which the Commission encountered when examining whether the measure at issue constituted aid or whether it was compatible with the internal market. It is apparent from the case-law in this respect that the notion of serious difficulties is an objective one (see, to that effect, judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 31).
44      The existence of such difficulties must be sought both in the circumstances in which the contested measure was adopted and in its content, in an objective manner, comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aid with the internal market. It follows that judicial review by the Court of the existence of serious difficulties will, by its nature, go beyond simple consideration of whether or not there has been a manifest error of assessment. A decision adopted by the Commission without initiating the formal examination phase may be annulled on that ground alone, because of the failure to initiate the inter partes and detailed examination laid down in the FEU Treaty, even if it has not been established that the Commission’s assessments as to substance were wrong in law or in fact (see judgment of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 100 and the case-law cited).
45      Moreover, in accordance with the objective of Article 108(3) TFEU and its duty of sound administration, the Commission may, amongst other things, engage in a dialogue with the notifying State or with third parties in an endeavour to overcome, during the preliminary procedure, any difficulties encountered. However, that power presupposes that the Commission may adjust its position in accordance with the results of the dialogue in which it engages, without that adjustment having to be interpreted, a priori, as establishing the existence of serious difficulties (see, to that effect, judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 35). It is only if those difficulties could not be overcome that they are found to be serious and that they must lead the Commission to have doubts, thus prompting it to initiate the formal investigation procedure (see, to that effect, judgments of 2 April 2009, Bouygues and Bouygues Télécom v Commission, C‑431/07 P, EU:C:2009:223, paragraph 61, and of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 70).
46      It is for the applicant to prove the existence of doubts, which it may do by reference to a body of consistent evidence, concerning, first, the circumstances and the length of the preliminary examination procedure and, second, the content of the contested decision (judgments of 27 September 2011, 3F v Commission, T‑30/03 RENV, EU:T:2011:534, paragraph 55; of 8 January 2015, Club Hotel Loutraki and Others v Commission, T‑58/13, not published, EU:T:2015:1, paragraph 40; and of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraphs 102 and 104).
47      According to the case-law, the partially incomplete and insufficient content of the contested decision may show that the Commission adopted that decision in spite of the existence of serious difficulties (see, to that effect, judgment of 10 February 2009, Deutsche Post and DHL International v Commission, T‑388/03, EU:T:2009:30, paragraph 118).
48      It is in the light of that case-law that the body of evidence put forward by the applicants should be examined.
2.      The evidence relating to the length of the procedure and the circumstances surrounding the adoption of the contested decision
49      The applicants submit, in essence, that the extremely long duration of the entire process demonstrates the complexity of the aid scheme at issue and constitutes evidence of the existence of doubts about the compatibility of that scheme with the internal market. In addition, the applicants point to certain circumstances surrounding the adoption of the contested decision which also show that the Commission should have had doubts as to the compatibility of the aid scheme at issue with the internal market.
50      The Commission contends that the applicants’ arguments based on the duration of the handling of their complaints are inadmissible, as they were raised for the first time in the reply and, therefore, at a late stage.
51      Regarding the substance, the Commission maintains, in essence, that the length of the pre-notification contacts does not constitute evidence of doubt as to the compatibility of the aid scheme at issue with the internal market. The sole relevant length in that regard is that of the preliminary examination, which begins to run from the receipt of a complete notification.
52      In addition, in the present case, the examination conducted by the Commission concerned an already-implemented aid scheme such that, in accordance with Article 15(2) of Regulation 2015/1589, it was not bound by the two-month time limit laid down in Article 4(5) of that regulation. Moreover, during the pre-notification phase, the Commission confined itself to assessing the completeness of the planned notification and requesting the information required to supplement it.
53      It is necessary to reject at the outset the plea of inadmissibility raised by the Commission concerning the belated invocation, at the stage of the reply, of the applicants’ argument concerning the total length of the administrative procedure, that is to say, from the time when the 2016 complaint was submitted, as having no factual basis. The applicants criticised in the application the ‘extremely long process’, claiming that, calculated from the time when the 2016 complaint was lodged, it lasted ‘exactly three years’.
54      As for the substance, it should be recalled that, in accordance with the case-law cited in paragraph 46 above, the existence of doubts that the Commission should have had as to the compatibility of the measure at issue with the internal market may be proved by reference to a body of consistent evidence, concerning inter alia the length of the preliminary examination procedure and the circumstances surrounding the adoption of the contested decision.
55      In the first place, in terms of the length of the administrative procedure, it is apparent from the contested decision and from the parties’ answers at the hearing that, in the case at hand, the Commission decided to merge, into one and the same procedure, the examination of the 2016 complaint, submitted on 27 January 2016, and of the 2017 supplementary complaint, in so far as those concerned State support for RES producers, with the examination of the RES aid scheme as pre-notified by the Lithuanian authorities on 27 June 2016.
56      It is, moreover, common ground that, when the RES aid scheme was formally notified on 20 November 2018, that scheme had already been put into effect since 2011 without the Commission’s prior authorisation. The present case therefore concerns unlawful aid within the meaning of Article 1(f) of Regulation 2015/1589, as the Commission found in recital 82 of the contested decision.
57      Regarding the procedure concerning unlawful aid, however, Regulation 2015/1589 does not require the Commission to carry out a preliminary examination of those measures within a specified period, as is apparent from Article 15(2) of that regulation. Nevertheless, in so far as the Commission has exclusive jurisdiction to assess the compatibility of a State aid measure with the internal market, it is required, in the interests of the sound administration of the fundamental rules of the FEU Treaty relating to State aid, to conduct a diligent and impartial examination of complaints reporting the grant of aid incompatible with the internal market. It follows, inter alia, that the Commission cannot prolong indefinitely the preliminary examination of State measures which have been the subject matter of a complaint once it has agreed to initiate such an investigation by requesting information from the Member State concerned. Indeed, the sole purpose of a preliminary examination is to allow the Commission to form an initial opinion on the classification of the measures submitted for assessment and their compatibility with the internal market (see, to that effect, judgment of 15 March 2018, Naviera Armas v Commission, T‑108/16, EU:T:2018:145, paragraph 60 and the case-law cited).
58      To that end, the second subparagraph of Article 12(1) of Regulation 2015/1589 requires the Commission to examine ‘without undue delay’ any complaint submitted by any interested party.
59      In that regard, the Commission undertakes to comply with certain time limits for examining complaints, through the adoption of a code of best practice. The Code of Best Practice for the conduct of State aid control procedures (OJ 2009 C 136, p. 13; ‘the 2009 Code of Best Practice’), applicable rationae temporis when submitting complaints, established a procedural mechanism the aim of which is to make State aid procedures more efficient, easier to apply and more predictable. Thus, although, as is moreover stated in paragraph 8 of the 2009 Code of Best Practice, that code does not alter any rights or obligations as set out in the FEU Treaty and the various regulations governing State aid procedures, the Commission cannot depart from its own rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations (see judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 100 and the case-law cited).
60      In accordance with paragraph 47 of the 2009 Code of Best Practice, the Commission undertook to ‘use its best endeavours to investigate a complaint within an indicative time frame of twelve months from its receipt’.
61      In the case at hand, first, it must be stated that the administrative procedure, from the submission of the 2016 complaint, on 27 January 2016, until the adoption of the contested decision, on 8 January 2019, by which the Commission adopted a position on certain aspects of that complaint, lasted almost three years in total.
62      The duration of the examination of the complaints therefore greatly exceeded the indicative time frame of 12 months prescribed in the 2009 Code of Best Practice.
63      Admittedly, as paragraph 47 of that code indicates, ‘depending on the circumstances of the individual case, the possible need to request complementary information from the complainant, the Member State or interested parties may extend the investigation of a complaint’.
64      However, it should be noted that the question in this case is not whether or not the duration of the preliminary examination was reasonable but whether that duration is indicative of serious difficulties (see, to that effect, judgment of 27 September 2011, 3F v Commission, T‑30/03 RENV, EU:T:2011:534, paragraph 69). It is therefore not for the Court to examine, in the context of the present dispute, whether the length of the procedure may be justified and, consequently, whether or not the Commission has infringed its obligation to give a decision within a reasonable time, but only whether the length of the procedure may objectively constitute evidence of the existence of serious difficulties during the examination of the aid measure at issue. The possible need to request complementary information from complainants, the Member State or interested parties, referred to in paragraph 47 of the 2009 Code of Best Practices, may itself constitute evidence of serious difficulties relating to the circumstances surrounding the adoption of the contested decision. That evidence is, moreover, examined below.
65      In any event, although the need to request complementary information from complainants or from the Member State concerned may in fact explain a certain extension of the indicative 12-month time frame, it should be pointed out that, in the case at hand, the examination of the 2016 complaint lasted three times longer than that indicative period. Such a large overrun cannot be attributed solely to the need to gather extra information.
66      That finding remains unchanged in respect of the 2017 supplementary complaint. After all, the Commission adopted the contested decision 24 months after receipt of that supplementary complaint, that is to say, within a period which is still much longer than that provided for in the 2009 Code of Best Practice.
67      It is true that, under paragraph 48 of the 2009 Code of Best Practice, the Commission may give different degrees of priority to the complaints brought before it. According to that same paragraph, within 12 months, the Commission is, in principle, to endeavour either to adopt a decision for priority cases, pursuant to Article 4 of Regulation 2015/1589, or, in non-priority cases, to send an initial administrative letter to complainants setting out its preliminary views.
68      However, assuming that the case at hand was not identified as a priority by the Commission, the Commission did not send an initial administrative letter to the complainants setting out its preliminary views within the indicative 12-month time frame specified in paragraph 48 of the 2009 Code of Best Practice, either.
69      The Commission has however claimed – at the hearing in particular – that the length of the procedure could be explained by the fact that it had received new information from the applicants in the 2017 supplementary complaint and in the letter of 15 January 2018. That argument of the Commission cannot succeed. On the one hand, as has been stated in paragraph 66 above, even taking as the starting point the date on which the 2017 supplementary complaint was submitted, the length of the procedure is still much greater than that prescribed in the 2009 Code of Best Practice. On the other hand, the Commission fails to specify which specific information brought to its attention in the letter of 15 January 2018 resulted – due in particular to its volume, novelty or complexity – in such a significant extension of the length of the procedure.
70      It must therefore be held that the duration of the examination of the complaints considerably exceeded the indicative time frames which the Commission had undertaken to observe under the 2009 Code of Best Practice.
71      Secondly, that conclusion is strengthened by the duration of the pre-notification phase, initiated by the Lithuanian authorities on 27 June 2016.
72      It should be noted in that regard that the pre-notification phase, which is not provided for, as such, in Regulation 2015/1589, is an informal phase which arose as a result of the Commission’s experience in conducting State aid control proceedings, and which was formally established in the 2009 Code of Best Practice (see, to that effect, judgment of 15 November 2018, Tempus Energy and Tempus Energy Technology v Commission, T‑793/14, under appeal, EU:T:2018:790, paragraph 86).
73      The 2009 Code of Best Practice provides, in Section 3 thereof (Pre-notification contacts), that the purpose of the pre-notification phase is to facilitate the notification of the proposed project in order to enable the Commission to carry out its preliminary examination optimally as soon as the notification is received. According to Article 2(2) of Regulation 2015/1589, the notification is to provide all necessary information in order to enable the Commission to take a decision pursuant to Article 4 (decisions on preliminary examination of the notification) and Article 9 (decisions to close the formal investigation procedure) of the regulation.
74      The essential objective of the pre-notification phase is, therefore, to reduce the risk that the notification is found to be incomplete, thereby delaying the examination procedure of the notified project.
75      The Commission therefore cannot confuse the – possibly prior – phase of the preparation of the notification with the phase for the examination of the notification, which initially occurs as a preliminary examination and, where necessary, subsequently takes the form of a formal investigation, if it proves necessary in order to allow it to gather all the information needed to assess the compatibility of the aid and collect, to that end, the observations of the interested parties (judgment of 15 November 2018, Tempus Energy and Tempus Energy Technology v Commission, T‑793/14, under appeal, EU:T:2018:790, paragraph 91).
76      As regards the duration of the informal ‘pre-notification’ phase, it is apparent from paragraph 14 of the 2009 Code of Best Practice that, as a general rule, pre-notification contacts should not last longer than two months and should be followed by a complete notification. Should those contacts not bring the desired results, the Commission services may declare the pre-notification phase closed. However, that code states that, due to the complexity of the individual case, pre-notification contacts may last several months.
77      In the case at hand, the pre-notification phase, which began on 27 June 2016, lasted two years and five months until formal notification, which took place on 20 November 2018.
78      It follows that the indicative time frames within which the pre-notification phase should generally be completed were exceeded considerably, which constitutes evidence, as is apparent from the very wording of the abovementioned provisions of the 2009 Code of Best Practice, of the complexity of the case.
79      In addition, it must be pointed out that, following the pre-notification of 27 June 2016, the Commission did not send its first request for information to the Lithuanian authorities until 15 March 2018, which is more than 20 months after the date of pre-notification. This shows that the Commission took a long time to conduct its initial examination of the scheme as pre-notified, which also shows, objectively, that the aid scheme at issue was of a certain complexity.
80      The Commission contends, however, that the length of the contacts between it and the Member State concerned prior to notification of the measure at issue is irrelevant and does not constitute evidence of the existence of doubts as to the compatibility of the aid with the internal market. In its view, only the length of the procedure following formal notification can constitute such evidence.
81      That argument cannot, however, succeed. The abovementioned indicative time frames which the Commission imposed on itself under the 2009 Code of Best Practice apply precisely to the duration of the pre-notification phase, that is to say, before formal notification, and to the examination of complaints, which may be submitted outside and independently of any formal notification. The length of pre-notification contacts or the duration of the investigation of a complaint may, however, like the duration of the procedure starting from formal notification until adoption of the contested decision, reveal, in an objective manner, that the Commission encountered certain difficulties with regard to the measure complained of or pre-notified, not enabling it to complete that stage of the procedure within the time frames which it imposed on itself.
82      That conclusion is confirmed by long-standing case-law, from which it is apparent that the duration of the preliminary examination of State measures subject to a complaint or that of the pre-notification phase may also be relevant in that regard (see, to that effect, judgment of 24 January 2013, 3F v Commission, C‑646/11 P, not published, EU:C:2013:36, paragraph 32 and the case-law cited; see also, to that effect, judgments of 10 May 2000, SIC v Commission, T‑46/97, EU:T:2000:123, paragraphs 102 to 108; of 12 December 2006, Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission, T‑95/03, EU:T:2006:385, paragraphs 121 to 129 and 135; of 27 September 2011, 3F v Commission, T‑30/03 RENV, EU:T:2011:534, paragraphs 58 to 69; of 9 December 2014, Netherlands Maritime Technology Association v Commission, T‑140/13, not published, EU:T:2014:1029, paragraphs 68 and 69; of 9 June 2016, Magic Mountain Kletterhallen and Others v Commission, T‑162/13, not published, EU:T:2016:341, paragraphs 145 to 148; and of 15 November 2018, Tempus Energy and Tempus Energy Technology v Commission, T‑793/14, under appeal, EU:T:2018:790, paragraphs 85, 92 and 106).
83      The Commission is wrong to invoke in support of its argument, summarised in paragraph 80 above, the Court’s case-law (judgments of 15 March 2001, Prayon-Rupel v Commission, T‑73/98, EU:T:2001:94, paragraphs 93 to 98; of 20 September 2007, Fachvereinigung Mineralfaserindustrie v Commission, T‑375/03, not published, EU:T:2007:293, paragraphs 117 to 119; of 10 July 2012, TF1 and Others v Commission, T‑520/09, not published, EU:T:2012:352, paragraphs 54 to 63; of 16 September 2013, Colt Télécommunications France v Commission, T‑79/10, not published, EU:T:2013:463, paragraphs 43 to 51; of 16 September 2013, Orange v Commission, T‑258/10, not published, EU:T:2013:471, paragraphs 44 to 53; of 16 September 2013, Iliad and Others v Commission, T‑325/10, not published, EU:T:2013:472, paragraphs 45 to 53; and of 3 December 2014, Castelnou Energía v Commission, T‑57/11, EU:T:2014:1021, paragraphs 59 to 67). The judgments in question, after all, concern, in essence, compliance with the two-month time limit laid down in Article 4(5) of Regulation 2015/1589, and in particular the question of when notification of proposed aid must be regarded as complete for that period to start to run. It is in that context that the Court held that the time which elapsed prior to the initial notification does not enter into the calculation of the time limit laid down in Article 4(5) of Regulation 2015/1589 (judgments of 16 September 2013, Iliad and Others v Commission, T‑325/10, not published, EU:T:2013:472, paragraph 52, and of 3 December 2014, Castelnou Energía v Commission, T‑57/11, EU:T:2014:1021, paragraph 66). The question of compliance with the time limit laid down in Article 4(5) of Regulation 2015/1589 does not, however, arise in the present case. After all, the aid measure at issue having been implemented as from 2011, the notification of it did not relate to proposed aid, such that Article 4(5) of Regulation 2015/1589 did not apply, in accordance with Article 15(2) of that regulation, as has been recalled in paragraph 57 above.
84      Nor can the Commission rely on arguments derived from the judgments of 11 November 2004, Demesa and Territorio Histórico de Álava v Commission (C‑183/02 P and C‑187/02 P, EU:C:2004:701, paragraph 52), and of 9 June 2011, Diputación Foral de Vizcaya and Others v Commission (C‑465/09 P to C‑470/09 P, not published, EU:C:2011:372, paragraph 102), in which the Court of Justice held, in the context of the examination of a plea based on the principle of the protection of legitimate expectations, that, when State aid has not been notified to the Commission, its failure to act in relation to that aid is irrelevant. In the present case, the applicants do not put forward any argument based on the principle of the protection of legitimate expectations, nor do they allege a ‘failure to act’ on the part of the Commission.
85      The Commission considers, moreover, that the duration of the pre-notification phase can be explained by the Member State’s wariness of providing a prior notification that was as complete as possible. However, on the one hand, that argument is unsubstantiated. The Commission does not claim, with supporting evidence, that the Lithuanian authorities were wary about cooperating during that phase nor is there anything in the file to that effect. On the other hand, and in any event, if pre-notification contacts were deemed to be unsuccessful, paragraph 14 of the 2009 Code of Best Practice authorises the Commission to declare the pre-notification phase to be closed. Yet the Commission did not do so, which shows that it did not believe that the Member State concerned was not cooperating or that contacts were unsuccessful.
86      It follows that the particularly long duration of the administrative procedure, whether it be counted from the time when the 2016 complaint was submitted until the adoption of the contested decision or limited to the pre-notification phase only, constitutes objective evidence of the serious difficulties encountered by the Commission during its examination of the scheme at issue.
87      That said, it should be recalled that, while the length of the preliminary examination can constitute an indication of the existence of serious difficulties, it does not of itself suffice to show the existence of such difficulties (judgment of 24 January 2013, 3F v Commission, C‑646/11 P, not published, EU:C:2013:36, paragraph 32). It is only if it is reinforced by other factors that the expiry of a time period may lead to the conclusion that the Commission encountered serious difficulties necessitating initiation of the procedure under Article 108(2) TFEU (see, to that effect, judgment of 25 November 2014, Ryanair v Commission, T‑512/11, not published, EU:T:2014:989, paragraph 75).
88      In the second place, it is therefore appropriate to examine whether the circumstances surrounding the adoption of the contested decision also constitute evidence of the existence of doubts as to the compatibility of the RES aid scheme with the internal market.
89      According to the applicants, those circumstances relate, first, to the fact that the Commission had received two complaints, which were the ‘driver and catalyst’ of the procedure for examining that scheme, secondly, to the significant number of exchanges and meetings between the Commission, the complainants and the Lithuanian authorities and, thirdly, to the content of the contacts between the Commission and those authorities, which show that the Commission had doubts in several respects as to the compatibility of the aid with the internal market.
90      The Commission counters that the circumstances presented by the applicants are incapable of evidencing the existence of doubts justifying the opening of a formal investigation procedure. First, the mere fact that the Commission has received complaints does not automatically mean that it must have doubts. Second, the purpose of the Commission’s requests for information is to ensure that it has all the information necessary to conduct its examination. In the present case, the requests for information – of which there are four – cannot be considered excessive. Furthermore, the purpose of the meeting between the Commission and the Lithuanian Minister responsible for energy was to clarify the broader context of the aid scheme at issue.
91      The Republic of Lithuania supports all of the Commission’s arguments. It contends, in particular, that, in accordance with the principle of sincere cooperation, informal contacts between the Commission and the Member States cannot be restricted. The purpose of such informal contacts is to allow the Commission and the Member State to assist each other in fulfilling the obligation under Article 108(3) TFEU to ensure the aid measure is compatible. Such cooperation makes it possible to discuss legal and economic aspects of the aid informally and thus improve the quality and comprehensiveness of notifications. Both the Member State and the Commission have an interest in the initial notification’s being comprehensive and of high quality.
92      In that regard, it should be recalled, as a preliminary point, that, even though complaints submitted by third parties may constitute indications of the existence of serious difficulties, their relevance very much depends on the evidence contained in those complaints and not on the mere fact that observations have been submitted (see judgment of 9 December 2014, Netherlands Maritime Technology Association v Commission, T‑140/13, not published, EU:T:2014:1029, paragraph 58 and the case-law cited).
93      In addition, the mere fact that discussions took place between the Commission and the Member State concerned during the preliminary examination stage and that, in that context, the Commission asked for additional information about the measures submitted for its review cannot in itself be regarded as evidence that the Commission was faced with serious difficulties of assessment. It is however conceivable that the content of the discussions between the Commission and the notifying Member State during that stage of the procedure might, in certain circumstances, be capable of revealing the existence of such difficulties. Moreover, the sending of a high number of requests for information to the notifying Member State by the Commission may, in association with the length of the preliminary examination, constitute an indication of serious difficulties (see, to that effect, judgments of 9 December 2014, Netherlands Maritime Technology Association v Commission, T‑140/13, not published, EU:T:2014:1029, paragraphs 73 and 74, and of 8 January 2015, Club Hotel Loutraki and Others v Commission, T‑58/13, not published, EU:T:2015:1, paragraph 47).
94      In the light of the case-law cited in paragraphs 92 and 93 above, it is appropriate to examine whether, first, the content of the complaints and that of the consecutive exchanges between the complainants and the Commission and, second, the number of requests for information sent to the Lithuanian authorities and the content of the discussions between those authorities and the Commission reveal the existence of serious difficulties which should have led the Commission to initiate the formal investigation procedure.
95      First, as regards the content of the complaints and of the exchanges between the complainants and the Commission, it must be stated that those point to a certain complexity of the legal framework governing State support for the electricity sector in Lithuania, characterised by various measures and by various categories of beneficiaries, of which the RES aid scheme is but one facet.
96      Thus, the 2016 complaint denounced several measures introduced under Lietuvos Respublikos Elektros energetikos įstatymas Nr. VIII-1881 (Law No VIII-1881 on electricity) of 20 July 2000 (Žin., 2004, No 66-1984; ‘the Law on Electricity’) in support of PIS, as defined by the national legal framework. The complainants had listed in that complaint 10 different activities in the electricity sector, financed as PIS by means of the PIS levy. In addition, they stated that the list of the beneficiaries of the aid at issue was extensive, with the result that they were not in a position to provide an exhaustive list of them, while indicating that there were, in their view, eight categories of beneficiaries, one of which was composed of RES producers.
97      In the 2017 supplementary complaint, the complainants submitted information relating to aid allegedly granted by the Republic of Lithuania in the form, first of all, of compensation for PIS providers in accordance with Article 74 of the Law on Electricity, including, in particular, a feed-in premium or a feed-in tariff for RES producers, next, exemptions from the obligation to pay the PIS levy in favour of certain operators on the energy market in accordance with Articles 20 and 21 of Resolution 916 on PIS and, last, aid granted to RES producers under Articles 40 to 42 of the Law on RES. It is thus apparent from an overall reading of that complaint that the complainants denounced parallel forms of aid granted inter alia to RES producers: first, Article 74 of the Law on Electricity and Article 20 of the Law on RES established a feed-in premium and a feed-in tariff for the benefit of RES producers, as PIS providers, and, second, Article 41 et seq. of the Law on RES established the arrangements for financing renewable energy projects under the National Programme for the development of RES and municipal programmes.
98      It is apparent from the file before the Court that, following the communication of those complaints to the Lithuanian authorities, the latter brought to the Commission’s attention proposals for amendments in order to address certain concerns raised in the complaints. In addition, on 15 May 2017, a meeting between the Commission and the complainants (see paragraph 4 above) took place on the subject of those proposals. One of the proposals envisaged, according to a memorandum dated 30 May 2017, drawn up by the complainants following that meeting and the veracity of which is not disputed, ‘abolishing the State support currently foreseen for [RES]’, not granting additional support according to the feed-in premium and the feed-in tariff for RES producers and replacing that system with a ‘new support scheme that would comply with European Union rules’. The complainants nevertheless expressed reservations about those proposals, as is apparent from the same memorandum.
99      On 15 January 2018, the complainants sent a further letter to the Commission in which they expressed their concerns as to the lack of communication regarding the handling of their complaints and submitted additional information concerning certain developments in the electricity sector in Lithuania. Following that letter, a new meeting was held between the complainants and the Commission on 21 February 2018, during which the complainants claimed, moreover, that the method of financing the RES aid scheme was discriminatory, as is apparent from the minutes of that meeting, drawn up by the Commission services.
100    It is furthermore apparent from those minutes that the investigation of the complaints was still ongoing at that point and that the Commission could not give the complainants any feedback in respect of them before the summer of the year in question. The Commission also informed the complainants that, ‘regarding the financing of th[o]se various [PIS], [its] investigation [was] not very advanced yet and [that it would] discuss it further with [the Republic of Lithuania]’.
101    Thus, the number and tenor of the questions raised in the complaints and of the subsequent exchanges between the Commission and the complainants, the circumstance that they led the Lithuanian authorities to consider certain proposals seeking to amend the measures at issue in order to address the concerns raised, the fact, on the one hand, that those proposals were made available to the complainants for comments and, on the other hand, that two meetings were organised with them suggest that the compatibility of the RES aid scheme with the internal market raised questions that could be regarded as sources of difficulty.
102    Secondly, as regards the requests for information sent by the Commission to the Lithuanian authorities before the notification of the RES aid scheme, it must be noted that the Commission sent four requests for information to those authorities, on 15 March, 8 May, 10 July and 24 October 2018, to which the latter replied by letters of 10 April, 31 May, 24 August and 12 November 2018, respectively. The Commission also held several meetings with them, namely on 3 May and 4 July 2018. It is also apparent from the file that, on 20 April 2017, the Minister responsible for energy of the Republic of Lithuania sent a letter to the Commissioner responsible for competition, following a meeting between the Commission and the Republic of Lithuania on 9 March 2017, on the subject of ‘public service obligations … in [the] electricity sector in Lithuania’, during which issues relating to ‘pre-notification’ had been discussed.
103    As regards the content of the discussions between the Commission and the Lithuanian authorities during the pre-notification phase, while such contacts are not prohibited inter alia in order to clarify technical issues concerning a draft notification, but rather are encouraged by the Commission, they nevertheless present, in this case, certain characteristics which highlight the complexity of the RES aid scheme and the difficulties which the Commission encountered when examining that scheme.
104    First of all, the requests for information (see paragraph 102 above) set out a long list of questions, some of them complex, concerning several aspects of the aid scheme at issue, such as the calculation of the amounts of aid and the possibility of cumulating the support under the RES aid scheme with other aid measures, a series of questions relating to the application of the exemptions from the PIS levy and the operation of PIS funds.
105    In addition, as the applicants rightly note, the Commission reiterated certain of those questions in its subsequent requests for information, which is also indicative of the difficulties it might have faced in understanding the applicable national legal framework. The following examples attest to this. Thus, the exemptions from the PIS levy, provided for by Resolution 916 on PIS, were the subject of several questions and several requests for information concerning their scope and the possibility of cumulation with other types of support (questions 5 and 6 on page 10 of the request of 15 March 2018, questions 4 and 6 on page 14 of the request of 8 May 2018 and question 2.c. on page 18 of the request of 10 July 2018). In its fourth request for information, dated 24 October 2018, that is to say, a few days before the date of the formal notification, the Commission stated that the question of the application of the exemptions from the PIS levy in favour of RES producers remained open, prompting it to question the Lithuanian authorities once again in that regard by asking them for specific information about the RES producers that had received aid under the RES aid scheme and had simultaneously benefited from some of those exemptions.
106    Next, in its request for information of 10 July 2018, the Commission raised the question of ‘potential discrimination’ against imported electricity the consumption of which in Lithuania was also covered by the PIS levy and, therefore, of the compliance of that aspect of the RES aid scheme with Articles 30 and 110 TFEU. The Commission also asked the Lithuanian authorities to explain what remedy they envisaged putting in place to tackle that potential discrimination. In its last request for information, dated 24 October 2018, the Commission stated, inter alia, that ‘further to a preliminary analysis, … the main remaining issue [was] the compliance [of the RES aid scheme] with Articles 30 and 110 TFEU’. It expressed doubts in that request as to the formula for calculating the volume of discriminated electricity proposed by the Lithuanian authorities and as to the measure envisaged by those authorities to remedy that discrimination.
107    First, those circumstances indicate that the exchanges in question did not relate exclusively to factual or technical information, the purpose of which was to enable the Member State to prepare a complete notification, but contained elements of assessment of the aid scheme at issue which revealed certain doubts harboured by the Commission in that regard.
108    Second, those circumstances suggest that some of the doubts which the Commission had at the start of the preliminary examination of the aid measure at issue could not be allayed by the responses provided by the Lithuanian authorities, but persisted at the end of the pre-notification phase.
109    Admittedly, the fact that several questions asked in the requests for information reveal the doubts which the Commission appeared to have concerning the notified measure in the light of State aid rules is not regarded, by the case-law, as being indicative of serious difficulties, since those doubts were allayed by the national authorities’ responses to those requests (see, to that effect, judgment of 16 September 2013, Orange v Commission, T‑258/10, not published, EU:T:2013:471, paragraph 78).
110    However, in the case at hand, it must be stated that, on 24 October 2018, that is to say, less than a month before the notification of the RES aid scheme by the Republic of Lithuania, the Commission still had doubts inter alia concerning the exemptions from the PIS levy and the compliance of that scheme with Articles 30 and 110 TFEU. Following the formal notification of that scheme, however, the Commission did not send any further requests for information to the Lithuanian authorities. Nor is there anything in the file to suggest that, following that notification, the Commission and the Lithuanian authorities held discussions on the subject of that scheme aimed at overcoming the persisting doubts prior to formal notification.
111    That being said, in accordance with the case-law cited in paragraph 46 above, the question whether those doubts could have been objectively allayed following the formal notification of the RES aid scheme can be analysed only in the light of the evidence relating to the content of the contested decision, which is examined below.
112    In the light of the foregoing, the Court considers that the number of exchanges between the Commission services, the complainants and the Lithuanian authorities and the content of those exchanges reveal serious difficulties encountered by the Commission during the examination of the RES aid scheme.
113    Taken together with the particularly long duration of the administrative procedure, those circumstances constitute objective and consistent evidence of the doubts which the Commission should have had when examining the RES aid scheme.
114    That being so, it is for the Court to assess as a whole the body of evidence put forward by the applicants in order to establish whether that evidence is supported or contradicted by other elements relating to the content of the contested decision.
3.      The evidence relating to the content of the contested decision
115    The applicants put forward five items of evidence relating to the content of the contested decision demonstrating, in their view, an incomplete analysis of the RES aid scheme and the existence of serious difficulties as regards the compatibility of that scheme with the internal market.
(a)    The evidence relating to the incomplete and incorrect analysis of the relevant national legal framework and the incorrect identification of a standalone ‘RES aid scheme’ and ‘RES levy’
116    According to the applicants, the Commission was wrong to find that the RES aid scheme was financed by a so-called ‘RES levy’ and that that scheme was a standalone support scheme. Contrary to what the Commission found in the contested decision, there is no ‘RES levy’, nor is there a standalone RES aid scheme. That scheme is merely a fragment of the ‘PIS scheme’, financed by a PIS levy, which is broader than the ‘RES levy’, the latter not existing as such. The RES aid scheme was established in the form of compensation for public service obligations under the Law on Electricity, the latter not even being mentioned by the Commission in the contested decision. On that basis, Resolution 916 on PIS and Resolution 1157 on PIS funds implement the mechanism for financing that scheme by means of a PIS levy collected from PIS funds, which covers the support of all PIS providers identified in the Law on Electricity. The Commission, however, disregarded the inherent link between the RES aid scheme and the ‘PIS scheme’.
117    The Commission, supported by the Republic of Lithuania, contends that the notification related to the RES aid scheme. That scheme was based on the Law on RES, under which RES producers receive a feed-in premium or the feed-in tariff. Thus, the Commission decided to examine the aid scheme at issue in a standalone manner, without prejudice to the assessment of the other aid measures financed by PIS funds. According to the Commission, the contested decision does not present the ‘RES levy’ as a financing method separate from the RES aid scheme, but rather focuses on that levy as part of the PIS levy, which also finances other aid measures in the energy sector in Lithuania. As the contested decision examines only the RES aid scheme, however, the part of the PIS levy aimed ultimately at financing the feed-in premium and feed-in tariffs was ‘renamed’, in the contested decision, the ‘RES levy’.
118    First, it should be noted that the RES aid scheme is part of a broader regime the object of which is supporting PIS (‘the PIS regime’). The PIS regime encompasses several State support mechanisms for various activities in the Lithuanian energy sector, pursuing various objectives and for the benefit of various beneficiaries.
119    The PIS regime (in its various facets) is described in detail in the judgment of 15 May 2019, Achema and Others (C‑706/17, EU:C:2019:407), and its main characteristics may be summarised as follows.
120    The Law on Electricity defines ‘public interest in the electricity sector’ as an action or omission in that sector, directly or indirectly connected to (i) State security in the field of energy and/or public safety, (ii) the security of the operation of the electricity system, (iii) the reduction of the negative impact of that sector on the environment, (iv) the diversification of energy sources, and (v) the other objectives of sustainable development of that sector laid down by that law. The Lithuanian Government, or the authority empowered by it, is to draw up a list of PIS and define the providers and procedures for the provision of those services. Resolution 916 on PIS, adopted pursuant to that law, provides, in points 7 to 7.6 of the description annexed thereto, that the following energy sector economic activities are to be regarded as PIS:
‘7.1      the generation of electricity through renewable energy sources and its balancing;
7.2      the generation of electricity by cogeneration at combined heat and power plants when such plants supply heat to district heating systems and the savings of primary energy are such that combined heat and power production can be considered efficient;
7.3      the construction of specific electric power plants in order to safeguard the security of electricity supply;
7.4      the maintenance of the reserve capacity of specific electric power plants the operation of which is necessary in order to safeguard national energy security;
7.5      the development of energy generation capacity which is of strategic importance in order to safeguard the security and reliability of the State’s energy system or the independence thereof;
7.6      the implementation of strategic projects in the electricity sector relating to improving energy security by installing interconnectors with electricity systems of other States and/or by connecting the Lithuanian electricity system with those of other Member States.’
121    According to points 8 to 8.3 of the description annexed to Resolution 916 on PIS, PIS are to be provided inter alia by RES producers, ‘producers appointed by the State to provide the public interest services set out in points 7.2 to 7.4 of [the annexed description and] persons designated in the national strategy, plan, implementation programmes and/or governmental decisions for energy independence to provide the public interest services set out in points 7.5 and 7.6 of [the annexed description]’.
122    The characteristics of the PIS regime are as follows. An obligation is imposed on end consumers to pay a contribution to the TSOs and DSOs, which is included in and increases the price of electricity, and in respect of which the NCECP fixes the amount in relation to each kilowatt-hour consumed. The sums thus collected by the TSOs and DSOs are paid to the administrator of the PIS funds. On the basis of those sums, the administrator of the PIS funds is required to calculate the PIS funds and apportion them among the various PIS providers, after deducting an amount covering its administrative costs.
123    As regards the beneficiaries of the PIS regime, the Court of Justice identified a number of categories, namely (i) the undertaking implementing the project of strategic importance, namely NordBalt, (ii) the undertakings which are entrusted with ensuring the security of electricity supply for a given period, (iii) the operators of solar power plants concerned by the State’s refusal to fulfil its commitments, which are compensated for the losses reflecting market conditions and actually sustained, and (iv) TSOs and DSOs, on account of the offsetting of actual losses sustained in their discharging of the obligation to purchase electricity at a fixed price from electricity producers providing PIS and to balance that obligation.
124    PIS funds are next apportioned among the various PIS providers, including RES producers, which are ‘actual recipients’ of them (see, to that effect, judgment of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 77).
125    It follows, in essence, that a part of those funds is ultimately devoted to the payment of the difference between the feed-in premium or the feed-in tariff and the market price, for the benefit of RES providers, whereas other parts of those funds are intended for other PIS providers.
126    It therefore follows from the foregoing that, as the applicants rightly submit, under the applicable national law, there is no ‘RES levy’, contrary to what the Commission stated in the contested decision (recitals 28, 29, 33, 34, 44, point 3.1.1.1, recitals 63 to 67, 70 to 72, footnote 25, recitals 77, 78, 81, 113, 114, and 121), but only a PIS levy, imposed on electricity consumption, paid to the PIS funds. It is therefore the PIS levy, and not the ‘RES levy’ mentioned in the contested decision, that is governed by Resolution 916 on PIS and Resolution 1157 on PIS funds.
127    What the Commission describes in the contested decision as an ‘RES levy’ relates, in reality, to the part of the PIS levy ultimately allocated to RES producers, as PIS providers within the meaning of the national law, and corresponding to the feed-in premium or the feed-in tariff.
128    Likewise, the applicants are correct to submit that the RES aid scheme is part of the broader PIS scheme, as is apparent from the judgment of 15 May 2019, Achema and Others
(C‑706/17, EU:C:2019:407).
129    The Commission has acknowledged that that description of the applicable national law was correct both in the rejoinder and in its answers to the questions put to it in that connection at the hearing. It explains, however, that, for the purposes of the contested decision, it ‘renamed’ the part of the PIS levy ultimately financing the feed-in premium and the feed-in tariff ‘RES levy’.
130    However, it should be noted that the contested decision does not mention either the PIS levy, as it exists under national law, or the relationship between that levy and the part of it referred to by the Commission as an ‘RES levy’. In the contested decision, the Commission refers exclusively to an ‘RES levy’, which does not however exist under national law.
131    In explaining, for the first time before the Court, the relationship between what it calls, in the contested decision, the ‘RES levy’ and the PIS levy, the Commission in fact seeks to supplement the reasons for the contested decision during the proceedings. However, in accordance with settled case-law, the reasons for a decision must appear in the actual body of the decision and that, save in exceptional circumstances, explanations given ex post facto by the Commission cannot be taken into account. It follows that the decision must be self-sufficient and that the reasons on which it is based may not be stated in written or oral explanations given subsequently when the decision in question is already the subject of proceedings brought before the EU judicature (see judgment of 28 January 2016, Slovenia v Commission, T‑507/12, not published, EU:T:2016:35, paragraph 53 and the case-law cited).
132    Secondly, the contested decision does not identify, in a complete and sufficient manner, the national legal framework on which the RES aid scheme is based. Thus, the contested decision makes no reference to the links between the RES aid scheme and the PIS regime, of which the former forms part. The only allusion in that regard is to be found in recital 28 of the contested decision, in which the Commission merely states that the ‘RES levy is collected into a fund dedicated to the financing of various energy policies’. Likewise, the Law on Electricity, on the basis of which the generation of electricity from RES is defined as PIS (see paragraph 120 above), is not mentioned in the contested decision, either. All of those elements, however, were brought to the Commission’s attention, as is apparent in particular from the content of the complaints.
133    Thirdly, the incomplete and insufficient analysis of the national legal framework underpinning the RES aid scheme and its financing method, by means of the PIS levy, is liable to have repercussions on several aspects of the contested decision. Thus, by way of example, the exemptions examined in the contested decision, which the Commission described as exemptions from ‘the RES levy’, are in reality exemptions from the PIS levy. Such inconsistencies are liable to distort the very basis of the analysis conducted, in so far as a correct understanding of the aid scheme at issue, as established under the applicable national law, is an essential premiss for any examination of the compatibility of that scheme with the internal market.
134    It is true that there is no obligation for the Commission to examine, in one and the same decision, the various State support measures for the Lithuanian energy sector. The Commission may thus, where appropriate, decide to examine one of those measures separately, provided, however, that such an analysis is based on a correct and complete understanding of the national legal framework governing it, for the reason set out in paragraph 133 above. It follows from the foregoing, however, that the contested decision does not satisfy that condition.
135    Consequently, the contested decision is based, in part, on an incomplete and insufficient analysis of the relevant national legal framework. According to the case-law, the partially incomplete and insufficient content of the contested decision may show that the Commission adopted the contested decision in spite of the existence of serious difficulties (see, to that effect, judgment of 10 February 2009, Deutsche Post and DHL International v Commission, T‑388/03, EU:T:2009:30, paragraph 118).
(b)    The evidence relating to the lack of assessment of any investment aid to RES producers
136    The applicants maintain that the Commission failed to assess the existence of investment aid granted to RES producers under Article 41 et seq. of the Law on RES, even though that aid had been denounced in the 2017 supplementary complaint. The Commission thus unduly restricted its analysis to the operating aid to RES producers, mentioning the investment aid only in order to exclude the possibility of cumulation between the two types of aid, without verifying whether such investment aid existed or whether it was lawful and compatible with the internal market.
137    The Commission, supported by the Republic of Lithuania, contends that the applicants do not describe the investment aid to which they refer and failed to provide any evidence in the 2017 supplementary complaint enabling it to conduct an assessment in that regard. Furthermore, no investment aid for RES producers was notified to the Commission. In those circumstances, it was sufficient to determine, in the contested decision, whether it was possible to cumulate the RES aid scheme examined as operating aid with any investment aid intended for the same producers.
138    In the first place, it should be noted, as has been found in paragraph 97 above, that, in the 2017 supplementary complaint, the applicants had denounced several forms of aid potentially applicable to RES producers. Thus, they inter alia denounced, first, an aid measure in the form of a feed-in premium or a feed-in tariff, granted to RES producers under Article 74 of the Law on Electricity and Article 20 of the Law on RES, second, aid measures in the form of exemptions, certain of which benefited only RES producers-consumers, and, third, aid measures granted in accordance with Articles 40 to 42 of the Law on RES, aimed at financing renewable energy projects within the framework of the National Programme for the development of RES and municipal programmes. In that latter respect, the applicants claimed that the beneficiaries of the measures provided for by that programme were RES producers which carried out energy projects included in the categories established by Article 42 of the Law on RES. The applicants expressly referred to that third form of aid to RES producers on numerous occasions in the 2017 supplementary complaint.
139    As regards the Commission’s criticism that the applicants did not describe in detail, in that complaint, the measures instituted under Articles 40 to 42 of the Law on RES, on the one hand, it is sufficient to note that the applicants clearly denounced the existence of those measures there, indicating their legal basis, and did so on several occasions. On the other hand, if the Commission was of the view that it did not have all the necessary information in that regard, it was entitled to request such information from the Lithuanian authorities, in accordance with the case-law cited in paragraph 45 above.
140    It is also apparent from the file that the Commission was aware of the existence of possible investment aid granted under Articles 40 to 42 of the Law on RES for the benefit of RES producers and questioned the Lithuanian authorities several times in that regard during the administrative procedure. Thus, it repeatedly asked questions concerning the existence of any investment aid and the possible cumulation between that aid and operating aid, in the context of its requests for information of 15 March, 8 May and 24 October 2018.
141    It follows that any aid granted under Articles 40 to 42 of the Law on RES in favour of RES producers was clearly denounced by the complainants, that the Commission was aware of it and that it questioned the Lithuanian authorities on several occasions in that regard.
142    In the second place, the fact, emphasised by the Commission, that the measures notified by the Lithuanian authorities did not include those instituted under Articles 40 to 42 of the Law on RES did not relieve the Commission of its obligation to examine those measures diligently and impartially, given that they had been brought to its attention and were expressly provided for in the very wording of the Law on RES. After all, the Commission is required, in the interests of sound administration of the fundamental rules of the FEU Treaty relating to State aid, to conduct a diligent and impartial examination, so that it has at its disposal, when adopting the final decision, the most complete and reliable information possible for that purpose (judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 90).
143    In the third place, the Court finds that the Commission in no way examined the existence and the compatibility with the internal market of any investment aid under Articles 40 to 42 of the Law on RES. First, it merely stated in that regard, in recitals 51 and 52 of the contested decision, that, according to the explanations given by the Lithuanian authorities, those articles of the Law on RES established the ‘mere possibility’ of providing support for renewable energies. It did not, however, examine whether that ‘possibility’, provided for by law, had been implemented, whether it could constitute State aid and, if so, whether it was compatible with the internal market.
144    Second, the Commission refers to Articles 40 to 42 of the Law on RES only in order to assert, in recital 122 of the contested decision, that, according to the Lithuanian authorities, RES producers benefiting from support ‘under the notified scheme’ could not receive aid through the other measures foreseen in the ‘National Programme for the development of renewable energy sources’. However, as the applicants submit, the fact, assuming it were established, that cumulation between operating aid and investment aid is not possible under the applicable national law is but one aspect of the examination of the compatibility with the internal market of the State support measures for RES producers that the Commission was required to carry out. There is nothing in the contested decision, however, to suggest that the Commission explored the question of whether such investment aid was granted to certain RES producers, whether it constituted State aid and whether it was compatible with the internal market.
145    In the fourth place, given that the Commission decided to merge, into one and the same procedure, the examination of the complaints with that of the aid measure as notified by the Lithuanian authorities, it was for the Commission to distinguish clearly, in the contested decision, the aspects of the complaints which are the subject of that decision from those which are not part of it and which would be examined at a later stage.
146    The contested decision, however, is ambiguous in that regard. Indeed, in recital 40 of the contested decision, the Commission states that that decision deals only with the aspects of the complaints relating to the ‘support granted to RES producers’ and that ‘the other aspects of [the] complaint[s] will be presented and addressed at a later stage’. It is not clear from such wording whether the Commission considered that any investment aid in favour of RES producers under Articles 40 to 42 of the Law on RES related to the ‘other aspects’ of the complaints that would be examined subsequently. The fact that the Commission mentioned possible aid under Articles 40 to 42 of the Law on RES at several points in the contested decision (recitals 46, 51, 52, 89, 104 and 122), as investment aid, including in point 3.5 of that decision, dedicated to the Commission’s response to the complaints, might suggest that it also adopted a position on the investment aid denounced in those complaints.
147    When questioned on this matter at the hearing, the Commission stated that any investment aid in favour of RES producers was not currently the subject of any other procedure, which confirms that the ‘other aspects’ of the complaints, which, according to the contested decision, would be examined ‘at a later stage’, did not concern the possible investment aid denounced in those complaints. Otherwise, the complainants could expect such aid to be the subject of a separate investigation, which is apparently not the case. It can be inferred from this that, by the contested decision, the Commission considered itself to have exhausted its examination of the State support granted to RES producers.
148    It follows from the foregoing that the Commission did not define precisely and unambiguously the scope of its examination in the contested decision, by which it adopted a position both on the aspects of the complaints relating to State support for RES producers and on the notification of the Lithuanian authorities of the RES aid scheme. That circumstance can only reflect an incomplete and insufficient analysis of the support measures for RES producers.
(c)    The evidence relating to the exemptions from the levy financing the RES aid scheme
149    The applicants claim that the contested decision is vitiated by flaws and contradictions since, while narrowing the scope of its analysis to the operating aid granted to RES producers, the Commission nevertheless examined whether all the exemptions from the PIS levy provided for in Resolution 916 on PIS constituted State aid, even though those exemptions benefited various operators on the electricity market in Lithuania and not only RES producers. That examination is inconsistent. First of all, the Commission disregarded the fact that, for certain exemptions, the beneficiaries were exclusively RES producers, whereas, for other exemptions, that was not the case, with the Commission citing different objectives on each occasion to justify those exemptions by the nature and scheme of the system. Next, the Commission also failed to examine the reasons for the exclusion of ‘large’ RES producers from the fourth exemption described in paragraph 19 above. Lastly, the Commission attempted to justify certain exemptions by arguing that there is no cumulation between them and the support for RES producers. That question is not, however, relevant for the purposes of assessing the selectivity of those exemptions.
150    The Commission, supported by the Republic of Lithuania, counters that, since the exemptions laid down in Resolution 916 on PIS relate to the levy which finances the feed-in premiums and the feed-in tariff, it was logical to assess them in the same decision as that assessing the RES aid scheme. According to the Commission, the contested decision concerns only exemptions from the ‘part of the PIS levy dedicated ultimately to financing the support for RES producers’. Thus, the other exemptions that might relate to other parts of the PIS levy, which finance other measures in place, do not fall within the scope of the contested decision. Furthermore, the exemptions at issue are not selective, since they are justified by the logic and nature of the reference system, defined as the ‘RES levy’.
151    In the contested decision, the Commission found that RES producers enjoyed an advantage corresponding to the feed-in premium or the feed-in tariff and that that advantage was selective, since, as electricity producers, they were in a situation factually and legally comparable to that of other electricity producers (recital 60 of the contested decision).
152    Having concluded that the RES aid scheme was selective, the Commission examined the exemptions from the ‘RES levy’ referred to in paragraph 19 above, concluding that the first four of those exemptions did not constitute State aid, on the ground that they were not selective, since they were justified by the logic and nature of the reference system.
153    In that regard, first of all, the Commission observed, in recital 63 of the contested decision, that, according to Resolution 916 on PIS, the ‘RES levy’ was imposed on end consumers of electricity on the basis of their electricity consumption, including electricity generated from RES. The Commission concluded that, for the purposes of examining the selectivity of the exemptions at issue, ‘the collection of the full “RES levy”’ constituted the reference system, the purpose of which was to ‘support the production of electricity from [RES]’ (see, inter alia, recitals 11, 63 and 65 of the contested decision). Next, the Commission noted that the exemptions at issue were prima facie selective, as they provided for derogations to ‘certain electricity consumers’ from the obligation to pay the ‘RES levy’ to the exclusion of others, when all electricity consumers in Lithuania are in a comparable situation (recitals 63, 65 to 67 of the contested decision). Finally, according to the Commission, those exemptions were nevertheless justified by ‘the logic and nature of the system’. Consequently, the first four exemptions listed in paragraph 19 above did not constitute State aid (recitals 81 and 121 of the contested decision). As regards the fifth exemption described in paragraph 19 above, the Commission stated that it was regarded as constituting State aid compatible with the internal market pursuant to Article 107(3)(a) TFEU.
154    According to settled case-law, the definition of ‘aid’ is more general than that of a ‘subsidy’, because it includes not only positive benefits, such as subsidies themselves, but also State measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 40 and the case-law cited).
155    Consequently, a measure whereby public authorities grant certain undertakings favourable tax treatment which, although not involving the transfer of State resources, places the recipients in a more favourable financial position than other taxpayers amounts to State aid within the meaning of Article 107(1) TFEU. On the other hand, advantages resulting from a general measure applicable without distinction to all economic operators, which is not therefore selective, do not constitute State aid within the meaning of Article 107 TFEU (judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 41).
156    More specifically, according to the method of analysis upheld in the case-law, in order to characterise a favourable tax measure as ‘selective’, it is necessary to begin by identifying and examining the common or ‘normal’ tax system applicable (see, to that effect, judgments 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 57, and of 28 June 2018, Andres (insolvency of Heitkamp BauHolding) v Commission, C‑203/16 P, EU:C:2018:505, paragraph 88 and the case-law cited).
157    It is in relation to this tax regime that it is necessary, secondly, to assess and, where appropriate, determine whether any advantage granted by the tax measure at issue may be selective by demonstrating that the measure derogates from that ‘normal’ system in differentiating between economic operators who, in light of the objective assigned to the applicable common or ‘normal’ tax system, are in comparable factual and legal situations (see, to that effect, judgments of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49, and 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 57). On the other hand, if it is apparent that the tax advantage, in other words the differentiation, is justified by the nature or general structure of the system of which it forms part, it cannot constitute a selective advantage (see, to that effect, judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 52; of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 83; and 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, paragraphs 58 and 60).
158    When reference is made to the nature of the ‘normal’ system, it is the objective attributed to that system which is being referred to, whereas when the general structure of the ‘normal’ system is mentioned, reference is being made to its rules of taxation (see, to that effect, judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 81, and of 7 March 2012, British Aggregates v Commission, T‑210/02 RENV, EU:T:2012:110, paragraph 84).
159    In the present case, it is not disputed that the exemptions at issue are prima facie selective in so far as they exempt certain categories of consumers from the obligation to pay the PIS levy and not others. In those circumstances, according to the case-law, it is necessary to examine whether those exemptions stem from ‘the nature and general scheme of the system of charges in question’.
160    To that end, as has been noted in paragraph 153 above, the Commission defined the reference system, against which the selectivity of those exemptions had to be assessed, as being the imposition of the ‘RES levy’, the purpose of which was to ‘support the production of electricity from [RES]’.
161    In the first place, however, as has been stated in paragraphs 118 and 130 to 132 above, there is no ‘RES levy’ under national law. There is a PIS levy, intended to finance a whole range of support measures for various investors and operators on the electricity market in Lithuania. The exemptions provided for by Resolution 916 on PIS are thus exemptions for the benefit of various categories of consumers from the obligation to pay the PIS levy. Certain exemptions thus have no connection with the consumption of RES electricity and are in no way aimed at promoting or supporting the generation of electricity from RES.
162    Accordingly, it must be held that the definition adopted by the Commission of the reference system against which it was appropriate to examine the selectivity of the exemptions at issue does not correspond to the national regulatory framework instituting the PIS levy.
163    In the second place, when it examined the question of whether the differentiation introduced by those exemptions resulted from the nature and general scheme of the reference system, the Commission defined the nature and general scheme of that system in an inconsistent manner.
164    First, in respect of the exemption concerning the consumption of electricity used to produce electricity (see the second exemption referred to in paragraph 19 above and recital 68 of the contested decision), it is common ground that that exemption benefits producers of all types of electricity, without limitation, such that it is not aimed at promoting the consumption or production of RES electricity. The Commission therefore could not conclude – without having doubts – that that exemption was justified by the nature and general scheme of the reference system, as it defined it, the purpose of which, according to the contested decision, was to support the production of RES electricity.
165    The fact, relied on in recital 68 of the contested decision, that that exemption applies in a non-discriminatory manner to ‘all electricity producers’ supports the foregoing.
166    It follows that the Commission considered that that exemption, deemed by it to be prima facie selective, was justified, since it did not discriminate between electricity producers, even though the purpose of the reference system, as considered by the Commission, is solely to promote of electricity generated from RES. That exemption, however, also benefits the production of polluting energy, such that it cannot be justified by the nature and general scheme of the reference system, defined by the Commission as being support for the production of RES energy alone.
167    Furthermore, Article 14(1)(a) of 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), to which the Commission refers in recital 68 of the contested decision, does indeed provide that Member States are to exempt from taxation energy products and electricity used to produce electricity and electricity used to maintain the ability to produce electricity. However, that same provision also states that Member States may tax those products ‘for reasons of environmental policy’. Thus, if the nature and general scheme of the reference system defined by the Commission lie in the promotion of RES energy, that exemption should logically have been limited to the consumption of electricity used for the production of RES electricity, thereby excluding polluting electricity sources.
168    Secondly, the same is true of the exemption concerning the volume of electricity purchased by TSOs and DSOs to compensate natural losses of electricity through the grid (see the third exemption mentioned in paragraph 19 above and recital 69 of the contested decision), which is also unrelated to the support for the production of RES electricity.
169    Third, as regards the exemption specifically concerning the electricity produced and consumed by RES producers, it should be noted that that is in fact two separate exemptions – which the Commission moreover acknowledged at the hearing – namely, first, the exemption relating to the volume of electricity produced by plants using RES and consumed for their own needs (that is to say, RES auto-generators) and, second, the exemption relating to the volume of electricity placed in virtual storage by small RES producers.
170    The Commission considered those two exemptions to be justified by the nature and general scheme of the system, on the ground that they contributed to increasing the consumption of electricity generated from RES, unlike other electricity consumers (recital 72 of the contested decision).
171    While that finding tends to show that those exemptions are in fact part of the nature and general scheme of the reference system, as defined in the contested decision, the fact remains that examining them is not without its difficulties – for other reasons – either.
172    First, the Commission observed, in recital 71 of the contested decision, that the advantage resulting from those exemptions had not been cumulated ‘in practice’ with the feed-in premium or the feed-in tariff. However, as the applicants rightly argue, the question of a possible cumulation is relevant to determining the compatibility of that exemption with the internal market, but not to examining whether those exemptions are selective and therefore constitute State aid.
173    Second, the applicants emphasise the fact that the exemption of volumes placed in virtual storage benefits only small RES plants, thereby excluding other RES plants, for which virtual storage might also be relevant, even though the latter also contribute to the attainment of the objective of promoting the generation of energy from RES.
174    In that regard, the contested decision merely indicates that that exemption applies only to ‘households’ and to ‘legal entities’, which do not benefit from the feed-in premium or the feed-in tariff. Apart from the fact that that reasoning also relates to the possible cumulation of those two types of advantage, and therefore to the compatibility of the exemption with the internal market, and not to its selectivity, that finding must be held to be indicative of an incomplete and insufficient analysis of that exemption. After all, first, according to recital 16(a) of the contested decision, ‘small scale power plants’, defined as plants with an installed capacity below 30 kW (until 2013) or 10 kW (after 2013), benefit from the feed-in tariff. Second, according to recital 34(d) and footnote 14 of the contested decision, ‘small RES installations’ benefiting from the exemption at issue are defined as those with an installed capacity below 10 kW for households and 100 kW for ‘legal entities’. The mere juxtaposition of that information suggests that a cumulation between the feed-in tariff and the benefit of the exemption at issue could not a priori be ruled out as such.
175    In addition, the Court of Justice has already had occasion to point out that the act of granting certain undertakings an advantage on the basis of their size, to the exclusion of others which are in a comparable legal and factual situation, may satisfy the selectivity criterion (see, to that effect, judgment of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraphs 63 to 67). The Commission did not, however, examine whether the differentiation created by the exemption at issue between ‘small RES installations’ and RES installations of different sizes was relevant for the purposes of the analysis of the selectivity of that exemption.
176    In the third place, the Commission submits, in the rejoinder, that ‘exemptions that might relate to other parts of the [PIS] levy financing other measures in place in Lithuania but not the notified RES [aid] scheme do not fall within the scope of the contested decision’. It must however be stated that that limitation of the scope of the contested decision, put forward by the Commission before the Court, not only does not appear in the contested decision, but is even refuted by the grounds of the decision. Indeed, in recitals 81 and 121 of the contested decision, the Commission concludes that the first four exemptions mentioned in paragraph 19 above are not selective and therefore do not constitute State aid, without drawing a distinction between those exemptions linked to the RES aid scheme and those with no such link.
177    In the fourth place, it has been noted in paragraphs 104 and 105 above that it was apparent from the content of the requests for information sent to the Lithuanian authorities that the examination of the exemptions at issue had revealed serious difficulties during the pre-notification phase. The foregoing analysis of the content of the contested decision, however, shows that those difficulties could not be overcome following the formal notification of the RES aid scheme.
178    In the light of the foregoing, it must be concluded that the Commission carried out an inconsistent, incomplete and insufficient examination of the exemptions at issue.
(d)    The evidence relating to the inadequate and erroneous assessment of the compatibility of the RES aid scheme with the Guidelines on State aid for environmental protection
179    According to the applicants, the Commission was wrong to conclude that the RES aid scheme was compatible with the Guidelines on State aid for environmental protection (OJ 2008 C 82, p. 1; ‘the 2008 Guidelines’) and the Guidelines on State aid for environmental protection and energy 2014-2020 (OJ 2014 C 200, p. 1; ‘the 2014 Guidelines’), devoting only 7 recitals to the assessment of the compatibility of that scheme with the 2008 Guidelines and 16 recitals to the analysis of its compatibility with the 2014 Guidelines, which indicates a failure to conduct an in-depth examination in that regard. The Commission did not sufficiently assess the negative effects of the scheme at issue on competition and trade between the Member States and it did not consider the overall environmental effect of that scheme, as is required by paragraph 90 of the 2014 Guidelines. In particular, it did not assess the effects of that scheme on trade, in the Baltic region in particular, nor did it take account of the fact that only Lithuanian RES producers benefited from the RES aid scheme, even though the PIS levy was imposed on the consumption of electricity, including imported electricity, which represented 68% of total electricity consumption in Lithuania in 2016 and 95.2% in 2017.
180    The Commission, supported by the Republic of Lithuania, counters, in essence, that, pursuant to paragraph 116 of the 2014 Guidelines, the aid schemes aimed at increasing the generation of electricity from RES could be reasonably presumed as having limited negative effects on trade and competition, provided that all the other conditions were met. In any event, the applicants neither mention nor demonstrate the existence of a significant negative effect caused by the RES aid scheme which could not be outbalanced by its positive contribution to an increased consumption of electricity generated from RES. In addition, the data on shares of imported electricity in Lithuania in 2016 and in 2017 referred to by the applicants only confirm the absence of negative effects on trade and competition.
181    In the first place, so far as concerns inter alia the aid for energy from RES, paragraph 116 of the 2014 Guidelines, in the light of which the Commission examined the RES aid scheme for the period between 29 June 2014 and 31 July 2015 (see recital 84 of the contested decision), provides that, in order to allow Member States to achieve their targets under the Europe 2020 strategy, ‘the Commission presumes the appropriateness of aid and the limited distortive effects of the aid provided all other conditions are met’.
182    In the case at hand, in recitals 105 to 108 of the contested decision, the Commission considered that the RES aid scheme, by its very nature, was favouring environmentally friendly technologies for producing electricity at the expense of producers of energy from conventional fuels and could not, therefore, in principle, be viewed as an undue distortion of competition, since it was inherently linked to that objective. It therefore considered, in accordance with paragraph 116 of the 2014 Guidelines, and because all the other conditions laid down in those guidelines had been fulfilled, that it could presume that the RES aid scheme had limited anticompetitive effects, which were outbalanced by the positive impact of the aid on the environment.
183    The Court considers, like the Commission, that paragraph 116 of the 2014 Guidelines thus establishes a rebuttable presumption which allows the Commission to assume, without carrying out a detailed examination, that an aid measure for electricity generated from RES is appropriate and that its distortive effects are limited if all the other conditions are fulfilled. In the present case, the applicants do not dispute the legality of paragraph 116 of the 2014 Guidelines. The Commission could therefore apply that presumption without examining in detail the negative effects of the aid on competition and trade and without carrying out a detailed balancing of the negative and positive effects of the aid.
184    In this case, however, the applicants do not put forward any specific item of evidence capable of casting doubt on the application of that presumption in the case at hand. They merely cite certain data relating to the share of electricity imported into Lithuania in 2016 and 2017. However, first, given that the aid scheme at issue was implemented in 2011, the data relating to 2016 and 2017 do not enable the impact of the aid on import flows before and after the aid’s institution to be assessed, such that no useful conclusion can be drawn from those data. Second, in so far as the applicants argue that the negative effects of the RES aid scheme stem from the discriminatory nature of that scheme with regard to electricity generated from imported RES, that argument overlaps with the argument relating to the discriminatory nature of the method of financing the aid scheme at issue, which will be examined in paragraph 209 et seq. below.
185    In the second place, the argument based on the brevity of the analysis of the compatibility of the RES aid scheme with the 2008 Guidelines and with those of 2014 must be rejected, since the brevity of the contested decision in that regard cannot in itself constitute evidence of an insufficient examination and, thus, of the existence of doubts.
186    In the third place, regarding the alleged infringement of the 2008 Guidelines, in the light of which the Commission examined the RES aid scheme for the period from its institution in 2011 until 28 June 2014 (see recital 84 of the contested decision), it must be noted that the applicants do not refer to any specific paragraph in those guidelines which the Commission infringed. Nor do they criticise recitals 85 to 91 of the contested decision, in which the Commission examined the incentive effect and proportionality of the aid at issue, the absence of overcompensation and of cumulation between it and other aid in the light of the requirements of those guidelines.
187    In those circumstances, it must be concluded that the applicants have not demonstrated the existence of doubts as to the compatibility of the RES aid scheme with the 2008 and 2014 Guidelines.
(e)    The evidence relating to the flawed and insufficient assessment of the compliance of the method of financing the RES aid scheme with Articles 30 and 110 TFEU
188    The applicants claim, in essence, that the method of financing the RES aid scheme constitutes discrimination against producers of RES electricity established in other Member States, in so far as they do not benefit from the feed-in premium or the feed-in tariff, unlike producers of RES electricity established in Lithuania, even though the consumption of imported electricity, including that generated from RES, is subject to the same levy, described by the Commission as an ‘RES levy’.
189    The Commission, supported by the Republic of Lithuania, disputes both the admissibility of the arguments raised by the applicants and their merits.
190    As regards the admissibility of the applicants’ arguments, the Commission raises three pleas of inadmissibility, as it confirmed at the hearing, which should be examined first.
(1)    Admissibility
191    In the first place, the Commission argues that, since the issue of the potential discrimination of electricity generated from imported RES was not raised by the applicants in the 2017 supplementary complaint, the applicants are not entitled to raise such arguments for the first time before the Court.
192    That plea of inadmissibility must be rejected. Although, in the complaints, the applicants did not raise specific arguments relating to possible discrimination against electricity generated from imported RES, it is apparent from the file that they claimed, during a meeting with the Commission on 21 February 2018, that the method of financing the RES aid scheme was discriminatory and that the Commission had indicated, during that meeting, that its investigation into that matter was not very advanced and that it intended to raise that issue with the Lithuanian authorities.
193    Furthermore, it is apparent from the file that that question was discussed on several occasions between the Commission and the Lithuanian authorities during the pre-notification phase (see paragraph 106 above).
194    According to the case-law cited in paragraph 42 above, the legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted, bearing in mind that the information ‘available’ to the Commission includes that which seemed relevant for the assessment to be carried out and which could have been obtained, upon request by the Commission, during the preliminary examination stage. In the present case, however, it is common ground that the Commission had at its disposal information enabling it to assess the compatibility of the aid with Articles 30 and 110 TFEU at the time of the adoption of the contested decision.
195    Likewise, it is for the Commission, where necessary, to extend its investigation of a complaint beyond a mere examination of the facts and points of law brought to its notice by the complainant. The Commission is required, in the interests of sound administration of the fundamental rules of the FEU Treaty relating to State aid, to conduct a diligent and impartial examination of the complaint, which may make it necessary for it to examine matters not expressly raised by the complainant (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 62).
196    Accordingly, the first plea of inadmissibility must be rejected.
197    In the second place, the Commission contends that the applicants have no ‘legal interest’ in contesting the discrimination introduced by the RES aid scheme on the ground that they are not affected by it, since they are not themselves RES producers established in another Member State.
198    That plea of inadmissibility must also be rejected. Contrary to what the Commission contends, the applicants do have an interest in having the contested decision annulled. After all, such an annulment would be capable, in itself, of procuring an advantage to them (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 55 and the case-law cited), since it would oblige the Commission to initiate the formal investigation procedure and thereby allow them to exercise their procedural rights.
199    Thus, if the Court were to find that there were doubts as to the compatibility of the aid scheme at issue with the internal market and that, therefore, the Commission was required to initiate the formal investigation procedure, and then, consequently, annul the contested decision, the Commission would have to adopt a decision under Article 4(4) of Regulation 2015/1589, with the content provided for in Article 6(1) of that regulation, and the applicants would have the opportunity to make their observations after having analysed that decision. The applicants would then be in a position to exercise their procedural rights in a much more relevant and informed manner than during the preliminary examination 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 52).
200    That conclusion is not called into question by the case-law cited by the Commission according to which an applicant must demonstrate an interest in bringing proceedings in respect of each plea in law relied on. According to that case-law, in essence, a plea for annulment is inadmissible on the ground that the applicant does not have an interest in bringing proceedings in that regard where, even if it were well founded, annulment of the contested act on the basis of that plea would not give it satisfaction (see judgment of 9 June 2011, Evropaïki Dynamiki v ECB, C‑401/09 P, EU:C:2011:370, paragraph 49 and the case-law cited; judgments of 27 March 2019, Canadian Solar Emea and Others v Council, C‑236/17 P, EU:C:2019:258, paragraph 93; and of 27 March 2019, Canadian Solar Emea and Others v Council, C‑237/17 P, EU:C:2019:259, paragraph 77). However, that is not the case here. After all, if the evidence relied on by the applicants were to reveal, whether alone or in combination with other evidence, the existence of serious difficulties, the contested decision would have to be annulled, thereby giving the applicants satisfaction, which would consequently be in a position to exercise their procedural rights.
201    In the third place, the Commission submits that the applicants’ arguments put forward in the context of the present item of evidence concern the substance and that, therefore, they are inadmissible, since the applicants are not individually and directly concerned, within the meaning of the case-law resulting from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17), by point 3.4 of the contested decision, which examines the question of possible discrimination.
202    However, first, it is apparent from the application that the present item of evidence is part of a body of evidence put forward under a single plea alleging infringement of the applicants’ procedural rights. The applicants have stated on several occasions, in their written pleadings before the Court and at the hearing, that this item of evidence is indicative of the existence of doubts as to the compatibility of the method of financing the RES aid scheme with Articles 30 and 110 TFEU. The applicants do not, therefore, seek a finding of infringement of those provisions of the FEU Treaty, but rather to demonstrate that that issue should have given rise to doubts on the part of the Commission.
203    Furthermore, according to the case-law, the applicants retain the right, in order to demonstrate the infringement of their 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 applicants, in order to determine whether they are such as to support the plea in law alleging the existence of doubts justifying initiation of the procedure referred to in Article 108(2) TFEU (see, to that effect, judgments of 13 June 2013, Ryanair v Commission, C‑287/12 P, not published, EU:C:2013:395, paragraphs 57 to 60, and of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 47).
204    Secondly, in so far as the Commission argues that the applicants’ status as ‘interested parties’ with regard to the aid measure must be ‘dissociated’ from their capacity to challenge the compatibility of the financing method of that measure with Articles 30 and 110 TFEU, a matter which the Commission assessed ‘separately’ in the contested decision, it is clear that point 3.4 of the contested decision, in which the Commission examined the compatibility of the financing method of the RES aid scheme with Articles 30 and 110 TFEU, is not detachable from the rest of that decision, but forms an integral part of it. The Commission confirmed, at the hearing, that it did not dispute that the financing method of the RES aid scheme formed an integral part of that scheme, formal note of which was taken in the minutes of the hearing. It is also apparent from paragraph 29 of the 2014 Guidelines that any levy that has the aim of financing a State aid measure needs to comply in particular with Articles 30 and 110 TFEU, such that the Commission cannot approve State aid without ensuring that it is compatible with those articles.
205    Therefore, in so far as the applicants put forward, in support of their action, a single plea in law alleging infringement of their procedural rights, which includes the present item of evidence, relating to the content of point 3.4 of the contested decision, since that point forms an integral part of that decision, they cannot be required to demonstrate that they are individually and directly concerned by that point of the contested decision.
206    Accordingly, the pleas of inadmissibility put forward by the Commission must be rejected.
(2)    Substance
207    The applicants submit, in essence, that a levy imposed on imported electricity and used to finance exclusively domestic production of electricity is in principle incompatible with the internal market. In the case at hand, the RES aid scheme discriminates against electricity generated from imported RES. In addition, the measure which the Republic of Lithuania committed to putting in place in order to remedy that discrimination, namely to invest EUR 104.2 million in projects supporting the European electricity market, potentially increasing the flow of electricity between States in continental Europe and the Baltic States (‘the investment commitment of the Lithuanian authorities’), is not sufficient, since it does not compensate importers of electricity generated from RES, which remain discriminated against, and is therefore not an adequate and sufficient justification of the discrimination at issue.
208    While acknowledging that the RES aid scheme introduces potential discrimination against electricity generated from imported RES, the Commission takes the view that the investment commitment of the Lithuanian authorities, in so far as it concerns investments of an amount at least equivalent to, or even higher than, that of the PIS levy, imposed on the consumption of electricity generated from imported RES, in projects favouring the European electricity market, is a sufficient remedy to address that discrimination. Thus, the increased interconnection between the Lithuanian electricity network and the electricity networks of the neighbouring Member States allows for greater penetration of imported electricity on the Lithuanian market and facilitates the completion of the internal electricity market. That approach is consistent with the Commission’s decision-making practice. Moreover, the applicants fail to demonstrate that, according to the national legislation, the PIS levy as such is directly hypothecated to the amount of the support for RES producers.
209    In recitals 110 and 111 of the contested decision, the Commission stated that the RES aid scheme had the aim of supporting the generation of RES electricity and that it was financed through a levy on domestic electricity consumption and that, therefore, in accordance with paragraph 29 of the 2014 Guidelines, it had to examine its compliance with Articles 30 and 110 TFEU.
210    Furthermore, in recitals 112 to 114 of the contested decision, the Commission observed that the aid scheme at issue was potentially discriminatory against RES producers established in other Member States which exported electricity generated from RES to Lithuania, in so far as the levy at issue, imposed without distinction on national or imported electricity consumption, benefited only national producers of RES electricity. The Commission also estimated the value of the electricity generated from imported RES that was subject to potential discrimination.
211    The Commission concluded, however, in recitals 56, 115 and 116 of the contested decision, that the investment commitment of the Lithuanian authorities could remedy the ‘potential breach of Articles 30 and 110 TFEU’.
212    In the first place, it is appropriate to recall that, according to settled case-law, any levy that has the aim of financing a State aid measure needs to comply in particular with Articles 30 and 110 TFEU (see, to that effect, judgments of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraphs 40 to 57, and of 1 March 2018, Petrotel-Lukoil and Georgescu, C‑76/17, EU:C:2018:139, paragraphs 21 to 30).
213    Thus, the method by which aid is financed may render the entire State scheme at issue incompatible with the internal market, requiring, in such a case, the Commission to examine the aid, taking into account also the economic and legal effects which its financing may produce (see, to that effect, judgments of 21 October 2003, van Calster and Others, C‑261/01 and C‑262/01, EU:C:2003:571, paragraph 49; of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 89; and of 21 July 2011, Alcoa Trasformazioni v Commission, C‑194/09 P, EU:C:2011:497, paragraph 48).
214    A charge which is imposed on domestic and imported products according to the same criteria may nevertheless be prohibited by the FEU Treaty if the revenue from such a charge is intended to support activities which specifically benefit the taxed domestic products. If the advantages which those products enjoy wholly offset the burden imposed on them, the effects of that charge are apparent only with regard to imported products and that charge constitutes a charge having equivalent effect within the meaning of Article 30 TFEU. If, on the other hand, those advantages only partly offset the burden borne by domestic products, the charge in question constitutes discriminatory taxation for the purposes of Article 110 TFEU, the collection of which is prohibited as regards the proportion used to offset the burden borne by the domestic products (judgments of 11 March 1992, Compagnie Commerciale de l’Ouest and Others, C‑78/90 to C‑83/90, EU:C:1992:118, paragraph 27, and of 27 October 1993, Scharbatke, C‑72/92, EU:C:1993:858, paragraph 10; see also, to that effect, judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraphs 40 to 57).
215    Where the charge specifically intended to finance the aid proves to be contrary to Articles 30 and 110 TFEU, the Commission cannot declare the aid scheme of which the charge forms part to be compatible with the internal market (judgment of 21 October 2003, van Calster and Others, C‑261/01 and C‑262/01, EU:C:2003:571, paragraph 48).
216    In the present case, it is common ground that the PIS levy financing the RES aid scheme is imposed without distinction on the consumption of both domestic and imported electricity. It is also common ground that the revenue from that levy or part thereof is ultimately used to support domestic RES producers, in particular by paying the feed-in premium or the feed-in tariff. It follows that the RES aid scheme benefits only national producers, even though its method of financing derives from a charge placed on the consumption of electricity, including electricity generated from RES, both imported and domestic.
217    It follows that, in accordance with the case-law cited in paragraphs 214 and 215 above, a parafiscal charge, such as the PIS levy, is liable to constitute either a charge having equivalent effect prohibited by Article 30 TFEU or discriminatory taxation prohibited by Article 110 TFEU.
218    In the second place, it should be recalled that Articles 30 and 110 TFEU do not provide for derogations.
219    Indeed, as far as Article 30 TFEU is concerned, it is settled case-law that the prohibition in that provision is of a general and absolute nature (see, to that effect, judgment of 21 September 2000, Michaïlidis, C‑441/98 and C‑442/98, EU:C:2000:479, paragraph 14 and the case-law cited). It follows from the clarity, imperative nature and unrestricted scope of the provisions of relevant primary law that the prohibition of customs duties constitutes an essential rule and that any exception must therefore be clearly provided for (see, to that effect, judgment of 14 December 1962, Commission v Luxembourg and Belgium, 2/62 and 3/62, EU:C:1962:45, p. 432). The Court of Justice has refused to extend by analogy the derogations from Articles 34 and 35 TFEU laid down in Article 36 TFEU to customs duties and charges having equivalent effect (judgment of 6 December 2018, FENS, C‑305/17, EU:C:2018:986, paragraph 54), pointing out that exceptions to such a fundamental rule must be strictly construed (see, to that effect, judgment of 10 December 1968, Commission v Italy, 7/68, EU:C:1968:51, p. 430).
220    As regards Article 110 TFEU, the Court of Justice has held that differentiation in the field of internal taxation was compatible with EU law only if, inter alia, the detailed rules were 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 (see, to that effect, judgment of 2 April 1998, Outokumpu, C‑213/96, EU:C:1998:155, paragraph 30). Similarly, in its judgment of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413, paragraph 42), the Court held that the collection of discriminatory taxation for the purposes of Article 110 TFEU was prohibited as regards the proportion used to offset the burden borne by the domestic products.
221    In his Opinion in the Visnapuu case (C‑198/14, EU:C:2015:463, points 56 and 57), Advocate General Bot observed that Article 110 TFEU did not prohibit internal taxation as such but its discriminatory or protective effect, so that it was sufficient to eliminate that discriminatory or protective effect in order to comply with Article 110 TFEU. He also observed that scope for justification, such as that provided for in Article 36 TFEU, was not provided for in the context of the application of Article 110 TFEU.
222    It follows that a parafiscal charge falling within the scope of Article 30 TFEU or of Article 110 TFEU cannot be the subject of any exception or justification.
223    Moreover, at the hearing, the parties confirmed that they were not challenging that interpretation of Articles 30 and 110 TFEU.
224    In the third place, in the case at hand, the Commission nevertheless considered that the ‘potential discrimination’ instituted by the RES aid scheme could be remedied by the investment commitment of the Lithuanian authorities.
225    It is true, as the Commission rightly submits, that that commitment seeks to facilitate the interconnection between the energy networks of Lithuania and of certain neighbouring Member States and, therefore, to improve the access to the Lithuanian market of producers of electricity, including RES, established in other Member States.
226    However, as the applicants emphasise, the investment commitment of the Lithuanian authorities is not liable to put an end, either for the past or for the future, to the discrimination against RES producers established in other Member States and exporting their electricity to Lithuania, since the commitment at issue leaves unchanged both the discriminatory aspect of the method of financing the RES aid scheme and the limitation of the benefit of that scheme to domestic RES producers alone. Those characteristics of the RES aid scheme are not affected by the investment commitment of the Lithuanian authorities.
227    In the fourth place, contrary to what the Commission maintains, it could not consider, on the basis of its previous decision-making practice, that the discriminatory nature of the method of financing the aid scheme at issue raised no serious difficulties.
228    The Commission’s previous decision-making practice is not binding on the Courts of the European Union and is therefore not decisive as to whether the Commission was obliged to initiate the formal investigation procedure in a given case.
229    In any event, it must be stated that that practice is divergent. Thus, although, in certain cases cited by the Commission, it found that an investment commitment equal to or greater than the value of discriminated electricity could remedy the potential discrimination at issue (decisions of 6 December 2017, SA.47354 (2017/NN) – Estonia (OJ 2018 C 121, p. 1); of 24 April 2017, SA.43140 (2015/NN) – Latvia (OJ 2017 C 176, p. 1); of 12 December 2016, SA.46655 (2016/NN) – France (OJ 2016 C 51, p. 1), and of 28 October 2014, SA.36023 (2014/NN) – Estonia (OJ 2014 C 44, p. 1)), in other cases, some of which are cited by the applicants, the Commission found, on the other hand, that the aid scheme under examination could be regarded as being compliant with Articles 30 and 110 TFEU if the national legislation opened up access to tender procedures for feed-in premiums also to producers of RES electricity established in other Member States (decisions of 23 April 2019, SA.50199 (2019/N) – Lithuania (OJ 2020 C 84, p. 1); of 29 March 2019, SA.48601 (2018/N) – Luxembourg (OJ 2019 C 194, p. 1), and of 24 October 2014, SA.36204 (2013/N) – Denmark (OJ 2015 C 94, p. 1)), or if the national legislation provided for the reimbursement of foreign producers of the sum concerned by that discrimination (see decisions of the Commission of 17 September 2009, C(2009) 7085, N 437/2009 – Romania (OJ 2010 C 31, p. 8); of 23 July 2014, SA.36196 (2014/N-2) – United Kingdom (OJ 2014 C 393, p. 1), and of 11 June 2014, SA.35177 (2014/NN) – Czech Republic (OJ 2014 C 280, p. 1)).
230    In the fifth place, it has been noted in paragraphs 106 and 110 above that, at the end of the pre-notification phase, the Commission had doubts as to whether the PIS levy and the investment commitment of the Lithuanian authorities complied with Articles 30 and 110 TFEU. It follows from the examination of the present item of evidence, however, that those doubts could not have been objectively allayed following the formal notification of the aid scheme at issue.
231    Last, the Commission contends that the applicants have not shown that the ‘RES levy’ is hypothecated to the amount of the support for RES producers under the aid scheme in question, or that the levy forms an integral part of that scheme.
232    That argument of the Commission is based on the case-law according to which, if a State aid measure or the conditions attached to it, including its financing method when it forms an integral part of it, entail a non-severable violation of Union law, the aid cannot be declared compatible with the internal market (judgment of 19 September 2000, Germany v Commission, C‑156/98, EU:C:2000:467, paragraph 78; see also, to that effect, judgments of 14 April 2005, AEM and AEM Torino,
C‑128/03 and C‑129/03, EU:C:2005:224, paragraphs 38 to 51, and of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraphs 94 to 116). The Commission thus seeks, in essence, to dispute that the financing method of the RES aid scheme forms an integral part of the aid.
233    It should, however, be pointed out that, in raising that argument, the Commission contradicts itself. In the contested decision, the Commission in no way considered that the PIS levy, part of which finances the RES aid scheme, was not an integral part of that scheme. On the contrary, the Commission made explicit reference to paragraph 29 of the 2014 Guidelines (recital 110 of the contested decision), in accordance with which State aid cannot be declared compatible with the internal market ‘if [it] or the conditions attached to it, including its financing method when it forms an integral part of it, entail a non-severable violation of Union law’ and, ‘for example, in the field of energy, any levy that has the aim of financing a State aid measure needs to comply in particular with Articles 30 and 110 [TFEU]’. It then examined whether that levy complied with Articles 30 and 110 TFEU. It is therefore clear that, in the contested decision, the Commission regarded that levy as forming an integral part of the RES aid scheme.
234    Moreover, the Commission referred to that levy on numerous occasions in the contested decision, without in any way suggesting that it would not form an integral part of the RES aid scheme it finances. Among the many examples, it is sufficient to mention the fact that the Commission examined whether the exemptions from that levy constituted aid, which also shows that the Commission considered that that levy, as a method of financing the feed-in premium or the feed-in tariff, formed an integral part of the scheme in question.
235    Furthermore, as has been noted in paragraph 204 above, the Commission stated at the hearing that it did not dispute that the financing method of the RES aid scheme formed an integral part of that scheme, formal note of which was taken by the Court in the minutes of the hearing.
236    In the light of the foregoing, it must be concluded that the item of evidence concerning the compatibility of the financing method of the RES aid scheme with Article 30 or 110 TFEU is capable of demonstrating the objective existence of serious difficulties which should have led the Commission to harbour doubts as to the compatibility of that scheme with the internal market.
C.      Conclusion
237    In the light of the foregoing considerations, it must be concluded that certain of the evidence relied on by the applicants is indicative of doubts which the Commission should have had as to the compatibility of the RES aid scheme with the internal market. That evidence relates, first, to the particularly long duration of the administrative procedure, whether calculated from the date of submission of the 2016 complaint until the adoption of the contested decision or limited to the pre-notification phase alone (paragraphs 54 to 86 above), second, to the circumstances surrounding the adoption of the contested decision, namely the number of exchanges between the Commission services, the complainants and the Lithuanian authorities as well as the content of those exchanges (paragraphs 92 to 112 above), third, to the incomplete and insufficient analysis of the relevant national legal framework (paragraphs 116 to 135 above), fourth, to the incomplete and insufficient analysis of the support measures for RES producers, in particular with regard to potential investment aid (paragraphs 138 to 148 above), fifth, to the inconsistent, incomplete and insufficient examination of the exemptions from the PIS levy (paragraphs 151 to 178 above) and, sixth, to the insufficient and incomplete examination of the compatibility of the financing method of the RES aid scheme with Article 30 or 110 TFEU (paragraphs 209 to 236 above).
238    That objective and consistent evidence, taken as a whole, tends to show that the Commission was not in a position, on the date of adoption of the contested decision, to overcome all the serious difficulties encountered during the preliminary examination procedure in respect of the State aid at issue.
239    Accordingly, it must be concluded that the assessment of the compatibility of the aid measure at issue with the internal market gave rise to doubts within the meaning of Article 4 of Regulation 2015/1589 which should have led the Commission to initiate the procedure referred to in Article 108(2) TFEU.
240    It follows from the foregoing that the single plea in law put forward by the applicants must be upheld and the contested decision annulled.
IV.    Costs
241    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicants, in accordance with the form of order sought by the latter.
242    Under Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. Consequently, it is appropriate to order the Republic of Lithuania to bear its own costs.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1.      Annuls Commission Decision C(2018) 9209 final of 8 January 2019 on State aid SA.45765 (2018/NN), concerning an aid scheme implemented by the Republic of Lithuania in support of producers of electricity from renewable energy sources;
2.      Orders the European Commission to bear its own costs and to pay those incurred by Achema AB and Lifosa AB;
3.      Orders the Republic of Lithuania to bear its own costs.
Kornezov
Buttigieg
Kowalik-Bańczyk
Delivered in open court in Luxembourg on 14 April 2021.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.