JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
16 December 2020 (*)
(Financial assistance under the Connecting Europe Facility for the period 2014-2020 – Field of trans-European energy infrastructure – Calls for proposals – Action for failure to act – No invitation to act – Inadmissibility – Action for annulment – Act not open to challenge – Preparatory act – Partial inadmissibility – Decision rejecting a proposal – Manifest errors of assessment – Obligation to state reasons – Competence of the Commission)
In Joined Cases T‑236/17 and T‑596/17,
Balti Gaas OÜ, established in Tallinn (Estonia), represented by E. Tamm, lawyer,
applicant,
supported by
Republic of Estonia, represented by N. Grünberg, acting as Agent,
intervener,
v
European Commission,
represented by O. Beynet and
Y. Marinova, acting as Agents,
and
Innovation and Networks Executive Agency (INEA), represented by
I. Ramallo and L. Di Paolo, acting as Agents,
defendants,
APPLICATION, first, under Article 263 TFEU for annulment of the decision allegedly contained in INEA’s letter of 17 February
2017 concerning the applicant’s
proposal
in response to the second call for proposals published for 2016 in the context of the Connecting Europe Facility (CEF), on the basis of the multiannual work programme adopted under Commission Implementing Decision C(2016) 1587 final of 17 March 2016 on amending Commission Implementing Decision C(2014) 2080 establishing the multiannual work programme for granting financial aid in the field of trans-European energy infrastructure under the CEF for the period 2014-2020 (Case T‑236/17), and, second, principally, under Article 265 TFEU for a declaration that the Commission unlawfully failed to adopt a reasoned decision regarding the applicant’s proposal and, in the alternative, application for annulment of Commission Implementing Decision C(2017) 1593 final of 14 March 2017 on the selection and award of grants for actions contributing to projects of common interest under the CEF in the field of trans-European energy infrastructure (Case T‑596/17),
THE GENERAL COURT (Sixth Chamber),
composed of
J. Schwarcz, acting as President, C. Iliopoulos (Rapporteur) and R. Norkus, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 8 July 2020,
gives the following
Judgment
Legal context
The CEF Regulation
1        Regulation (EU) No 1316/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Connecting Europe Facility, amending Regulation (EU) No 913/2010 and repealing Regulations (EC) No 680/2007 and (EC) No 67/2010 (OJ 2013 L 348, p. 129; ‘the CEF Regulation’), created the Connecting Europe Facility (CEF), which is designed to accelerate investment in the field of trans-European networks.
2        Recital 48 of the CEF Regulation is worded as follows:
‘Projects of common interest in the fields of electricity, gas and carbon dioxide should be eligible to receive Union financial assistance for studies and, under certain conditions, for works in the form of grants or in the form of innovative financial instruments. This will ensure that tailor-made support can be provided to those projects of common interest which are not viable under the existing regulatory framework and market conditions. In the field of energy, it is important to avoid any distortion of competition, in particular between projects contributing to the achievement of the same Union priority corridor. Such financial assistance should ensure the necessary synergies with the European Structural and Investment Funds, which will finance smart energy distribution networks of local or regional importance. A three-step logic applies to investments in projects of common interest. First, the market should have the priority to invest. Second, if investments are not made by the market, regulatory solutions should be explored, if necessary the relevant regulatory framework should be adjusted, and the correct application of the relevant regulatory framework should be ensured. Third, where the first two steps are not sufficient to deliver the necessary investment in projects of common interest, Union financial assistance could be granted if the project of common interest fulfils the applicable eligibility criteria.’
3        Recital 55 of the CEF Regulation is worded as follows:
‘Given the resources available at Union level, concentration on projects with the highest European added value is necessary in order to achieve the desired impact. … In the energy sector, financial assistance
should focus on completing the internal energy market, ensuring security of supply, promoting sustainability, inter alia by ensuring the transmission of renewable electricity from generation to centres of demand and storage, and attracting public and private investment. …’
4        Article 3 of the CEF Regulation defines the CEF’s general objectives of enabling projects of common interest (‘PCIs’) to be prepared and implemented within the framework of the trans-European networks policy in the transport, telecommunications and energy sectors. Article 4 sets out specific objectives for each of those three sectors.
5        Article 7 of the CEF Regulation, entitled ‘Eligibility and conditions for financial assistance’, states:
‘1.      Only actions contributing to [PCIs] in accordance with [Regulation] … (EU) No 347/2013 …, as well as programme support actions, shall be eligible for support through Union financial assistance in the form of grants, procurement and financial instruments.
…
3.      In the energy sector, all actions implementing those [PCIs] that relate to the priority corridors and areas referred to in Part II of Annex I to this Regulation and that meet the conditions set out in Article 14 of Regulation (EU) No 347/2013, as well as programme support actions, shall be eligible for Union financial assistance in the form of financial instruments, procurement and grants under this Regulation.
To allow for the most efficient use of the Union budget so as to enhance the multiplier effect of Union financial assistance, the Commission shall provide financial assistance as a priority in the form of financial instruments whenever appropriate, subject to market take-up and whilst respecting the ceiling for the use of financial instruments in accordance with Article 14(2) and Article 21(4).
…’
6        Article 8 of the CEF Regulation, entitled ‘Forms of grants and eligible costs’, provides:
‘1.      Grants under this Regulation may take any of the forms provided for by Regulation (EU, Euratom) No 966/2012.
The work programmes referred to in Article 17 of this Regulation shall establish the forms of grants that may be used to fund the actions concerned.
…’
7        Article 17 of the CEF Regulation, entitled ‘Multiannual and/or annual work programmes’, provides:
‘1.      The Commission shall adopt, by means of implementing acts, multiannual and annual work programmes for each of the transport, telecommunications and energy sectors. … Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).
…
5.      The Commission, when adopting multiannual and sectoral annual work programmes, shall establish the selection and award criteria in line with the objectives and priorities laid down in Articles 3 and 4 of this Regulation and in
[Regulation] (EU) No 347/2013 … When setting the award criteria, the Commission shall take into account the general orientations laid down in Part V of Annex I to this Regulation.
…’
8        Article 18 of the CEF Regulation, entitled
‘Granting of Union financial assistance’, is worded as follows:
‘1.      Following every call for proposals based on a multiannual or annual work programme as referred to in Article 17, the Commission, acting in accordance with the examination procedure referred to in Article 25, shall decide on the amount of financial assistance to be granted to the projects selected or to parts thereof. The Commission shall specify the conditions and methods for their implementation.
…’
9        Article 25 of the CEF Regulation, entitled
‘Committee procedure’, states:
‘1.      The Commission shall be assisted by the CEF Coordination Committee. The Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
…’
The Financial Regulation
10      Article 132 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1; ‘the Financial Regulation’), entitled ‘Selection and award criteria’, provides:
‘1.      The selection criteria announced in advance in the call for proposals shall be such as to make it possible to assess the applicant’s ability to complete the proposed action or work programme.
2.      The award criteria announced in advance in the call for proposals shall be such as to make it possible to assess the quality of the proposals submitted in the light of the objectives and priorities set.
…’
11      Article 133 of the Financial Regulation, entitled ‘Evaluation procedure’, states:
‘1.      Proposals shall be evaluated, on the basis of pre-announced selection and award criteria, with a view to determining which proposals may be financed.
2.      The authorising officer responsible shall, on the basis of the evaluation provided for in paragraph 1, draw up the list of beneficiaries and the amounts approved.
3.      The authorising officer responsible shall inform applicants in writing of the decision on their application. If the grant requested is not awarded, the institution concerned shall give the reasons for the rejection of the application, with reference in particular to the selection and award criteria.
4.      The Commission shall be empowered to adopt delegated acts in accordance with Article 210 concerning detailed rules on the evaluation and award of grants and information to applicants.’
The TEN‑E Regulation
12      Recital 7 of Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 (OJ 2013 L 115, p. 39;
‘the TEN‑E Regulation’) is worded as follows:
‘Accelerating the refurbishment of existing energy infrastructure and the deployment of new energy infrastructure is vital to achieve the Union’s energy and climate policy objectives, consisting of completing the internal market in energy, guaranteeing security of supply, in particular for gas and oil, reducing greenhouse gas emissions by 20% (30% if the conditions are right), increasing the share of renewable energy in final energy consumption to 20% and achieving a 20% increase in energy efficiency by 2020 whereby energy efficiency gains may contribute to reducing the need for construction of new infrastructures. At the same time, the Union has to prepare its infrastructure for further decarbonisation of its energy system in the longer term towards 2050. This Regulation should therefore also be able to accommodate possible future Union energy and climate policy objectives.’
13      Article 3 of the TEN‑E Regulation, entitled ‘Union list of [PCIs]’, provides:
‘…
3.      The decision-making body of each Group shall adopt a regional list of [PCIs] drawn up according to the process set out in Annex III.2, according to the contribution of each project to implementing the energy infrastructure priority corridors and areas and according to their fulfilment of the criteria set out in Article 4.
When a Group draws up its regional list:
(a)      each individual proposal for a [PCI] shall require the approval of the Member States, to whose territory the project relates; if a Member State decides not to give its approval, it shall present its substantiated reasons for doing so to the Group concerned;
(b)      it shall take into account advice from the Commission that is aimed at having a manageable total number of [PCIs].
4.      The Commission shall be empowered to adopt delegated acts in accordance with Article 16 that establish the Union list of [PCIs] (“Union list”), subject to the second paragraph of Article 172 of the TFEU. The Union list shall take the form of an annex to this Regulation.
In exercising its power, the Commission shall ensure that the Union list is established every two years, on the basis of the regional lists adopted by the decision-making bodies of the Groups as established in Annex III.1(2), following the procedure set out in paragraph 3 of this Article.
The first Union list shall be adopted by 30 September 2013.
…’
14      Article 4 of the TEN‑E Regulation, entitled ‘Criteria for [PCIs]’, provides as follows:
‘1.      [PCIs] shall meet the following general criteria:
(a)      the project is necessary for at least one of the energy infrastructure priority corridors and areas;
(b)      the potential overall benefits of the project, assessed according to the respective specific criteria in paragraph 2, outweigh its costs, including in the longer term; and
(c)      the project meets any of the following criteria:
(i)      involves at least two Member States by directly crossing the border of two or more Member States;
(ii)      is located on the territory of one Member State and has a significant cross-border impact as set out in Annex IV.1;
(iii)      crosses the border of at least one Member State and a European Economic Area country.
2.      The following specific criteria shall apply to [PCIs] falling within specific energy infrastructure categories:
…
(b)      for gas projects falling under the energy infrastructure categories set out in Annex II.2, the project is to contribute significantly to at least one of the following specific criteria:
(i)      market integration, inter alia through lifting the isolation of at least one Member State and reducing energy infrastructure bottlenecks; interoperability and system flexibility;
(ii)      security of supply, inter alia through appropriate connections and diversification of supply sources, supplying counterparts and routes;
(iii)      competition, inter alia through diversification of supply sources, supplying counterparts and routes;
(iv)      sustainability, inter alia through reducing emissions, supporting intermittent renewable generation and enhancing deployment of renewable gas;
…’
15      Article 5 of the TEN‑E Regulation, entitled ‘Implementation and monitoring’, states inter alia as follows:
‘…
4.      By 31 March of each year following the year of inclusion of a [PCI] on the Union list pursuant to Article 3, project promoters shall submit an annual report, for each project falling under the categories set out in Annex II.1 and 2, to the competent authority referred to in Article 8 and either to the Agency or, for projects falling under the categories set out in Annex II.3 and 4, to the respective Group. That report shall give details of:
(a)      the progress achieved in the development, construction and commissioning of the project, in particular with regard to permit granting and consultation procedures;
(b)      where relevant, delays compared to the implementation plan, the reasons for such delays and other difficulties encountered;
(c)      where relevant, a revised plan aiming at overcoming the delays.
…’
16      Article 14 of the TEN‑E Regulation, entitled ‘Eligibility of projects for Union financial assistance’, states:
‘1.      [PCIs] falling under the categories set out in Annex II.1,
2 and 4 are eligible for Union financial assistance in the form of grants for studies and financial instruments.
2.      [PCIs] falling under the categories set out in Annex II.1(a) to (d) and Annex II.2, except for hydro-pumped electricity storage projects, are also eligible for Union financial assistance in the form of grants for works if they fulfil all of the following criteria:
(a)      the project specific cost-benefit analysis pursuant to Article 12(3)(a) provides evidence concerning the existence of significant positive externalities, such as security of supply, solidarity or innovation;
(b)      the project has received a cross-border cost allocation decision pursuant to Article 12; or, for [PCIs] falling under the category set out in Annex II.1(c) and that therefore do not receive a cross-border cost allocation decision, the project shall aim to provide services across borders, bring technological innovation and ensure the safety of cross-border grid operation;
(c)      the project is commercially not viable according to the business plan and other assessments carried out, notably by possible investors or creditors or the national regulatory authority. The decision on incentives and its justification referred to in Article 13(2) shall be taken into account when assessing the project’s commercial viability.
…’
Background to the dispute
17      On 17 March 2016, by Implementing Decision C(2016) 1587 final on amending Commission Implementing Decision C(2014) 2080 establishing the multiannual work programme for granting financial aid in the field of trans-European energy infrastructure under the CEF for the period 2014-2020 (‘the decision on the multiannual work programme’), the European Commission adopted the 2014-2020 multiannual work programme. In its annex, the decision on the multiannual work programme sets out in detail the maximum budget authorised for the implementation of that programme.
18      Point 6.5 of the annex to the decision on the multiannual work programme, entitled
‘Award criteria for grants’, states as follows:
‘The proposals will be evaluated against the following award criteria taking into account the list of general orientation as stipulated in Article 17(5) and in Part V of the Annex of the CEF Regulation:
(1)      Maturity of the action with regard to the developmental stage of the project, based on the implementation plan (Article 5(1) of the TEN‑E Regulation);
(2)      Cross-border dimension of the action, area of impact and number of Member States involved in the action;
(3)      Extent of the positive externality provided by the action involving works, impact of the action on solidarity;
(4)      Need to overcome financial obstacles;
(5)      Soundness of the implementation plan proposed for the action;
(6)      Stimulating effect of the CEF financial assistance on the completion of the action;
(7)      Priority and urgency of the action, will the project remove bottlenecks, end energy isolation and contribute to the implementation of the internal energy market?
…’
19      On 30 June 2016, the Innovation and Networks Executive Agency (INEA), established in 2014 by Commission Implementing Decision 2013/801/EU of 23 December 2013 establishing the Innovation and Networks Executive Agency and repealing Decision 2007/60/EC as amended by Decision 2008/593/EC (OJ 2013 L 352, p. 65), published the second call for proposals (‘the call for proposals of
30 June 2016’) under the CEF for the period 2014-2020 in the field of energy, making public funds of EUR 600 million available to finance PCIs
in the energy sector, namely in electricity and gas. According to the timetable set out in section 5 of the call for proposals, the deadline for the submission of proposals was 8 November 2016, the consultation of the CEF Coordination Committee was to occur during February 2017 and the adoption by the Commission of a decision on the award of grants was scheduled for March 2017.
20      Section 9 of the call for proposals of 30 June 2016, entitled ‘Award criteria’, sets out the award criteria for the grants referred to in paragraph 18 above, with clarifications
and indications of the weighting of each criterion for evaluation purposes. Furthermore, it is stated that, at the evaluation stage, each award criterion was to be given a score between 0 (very poor) and 5 (excellent), and the minimum acceptance threshold for each award criterion was 60% (3 points before weighting) in order to be recommended for funding. Because of the complexity of the evaluation and the degree of specialisation required, the Commission was assisted by external experts for the technical evaluation of the first five award criteria (referred to in paragraph 18 above).
21      On the same day, the Commission issued a press release also stating that the deadline for the submission of project proposals was
8 November 2016 and that the adoption of a decision on the award of grants was scheduled for March 2017.
22      The Commission drew up a Guide for Applicants, available on INEA’s website. In paragraphs 3.1 to 3.19 of section 4.5 of that guide, under the heading ‘Part D: Technical and financial information’, the
criteria for the award of grants
referred to in paragraph 18 above were again set out, together with further clarifications. INEA also organised an information day for potential candidates.
23      On 8 November 2016, the applicant, Balti Gaas OÜ, a company established in Tallinn (Estonia) and involved in the project development, and subsequent operation,
of the liquefied natural gas terminal in Paldiski (Estonia), submitted a proposal for financial support (‘the proposal of 8 November 2016’) in accordance with the call for proposals of 30 June 2016. The proposal of 8 November 2016 was for EUR 136 715 600 for a project involving the construction and commissioning of the Paldiski liquefied natural gas (LNG) terminal (‘the Paldiski project’). That proposal was considered admissible and therefore accepted for evaluation.
24      Furthermore, Commission Delegated Regulation (EU) No 1391/2013 of 14 October 2013 amending [the TEN‑E Regulation] as regards the Union list of [PCIs] (OJ 2013 L 349, p. 28) had already recognised the Paldiski project as a PCI within the meaning of Article 3(4) of the TEN‑E Regulation for the priority corridor ‘Baltic Energy Market Interconnection Plan in gas’ (‘BEMIP Gas’). That PCI status was maintained by Commission Delegated Regulation (EU) 2016/89 of 18 November 2015 amending [the TEN‑E Regulation] as regards the Union list of [PCIs] (OJ 2016 L 19, p. 1) until the entry into force of the third Union list of PCIs introduced by Commission Delegated Regulation (EU)
2018/540 of 23 November 2017 amending [the TEN‑E Regulation] as regards the Union list of [PCIs] (OJ 2018 L 90, p. 38), in which the Paldiski project was no longer included.
25      On 17 February 2017, INEA sent an email to the applicant, signed by the INEA Evaluation Team, with an attached letter, signed by the Head of the R1 Unit of INEA (‘the letter of 17 February 2017’). The wording of that letter is as follows:
‘…
Following the call for proposals published on 30 June 2016 under the … CEF[,] in the field of energy …, the evaluation of the eligible proposals has taken place and the Commission has drawn up a list of proposals selected for receiving Union financial assistance. On 17 February 2017, the CEF Coordination Committee … gave a positive opinion on this draft list.
We regret to inform you that your application has not been successful in the above procedure, as it did not reach a result for each evaluated criterion of at least 60% (at least 3 points before weighting) of the maximum points foreseen per criterion.
Award criteria
Marks awarded
Weighting
1. Maturity of the action
3
20%
2. Cross-border dimension
2
10%
3. Extent of positive externality
3
15%
4. Need to overcome financial obstacles
2
15%
5. Soundness of the implementation plan proposed for the Action
3
10%
6. Priority and urgency of the Action
2
15%
7. Stimulating effect of CEF financial assistance
1
15%
TOTAL WEIGHTED SCORE
230
…
The objective of the action is the construction and the commissioning of the LNG terminal in Paldiski (Estonia). The overall maturity of the action is good but it is unlikely that the project will enter into construction in the coming months. The proposal fails to demonstrate the cross-border dimension of the action, as the alleged benefits in terms of security of supply and solidarity in the region are only claimed and do not seem to bring real added value for the region. The proposal shows limitations in showing the significant externalities in the Eastern Baltic Sea region in terms of security of supply, taking into account already the existing infrastructure (Klaipėda LNG) and the infrastructure under development (Balticconnector and enhancement of EE-LV and LV-LT interconnectors); particularly for Estonia it is considered that the regional security of supply level is sufficient without the Paldiski terminal and the benefits for Finland are disputable. The proposal does not show in a convincing way the application of the solidarity principle. The proposal, and in particular the cost-benefit analysis (CBA) and the cross-border cost allocation decision (CBCA) do not demonstrate in a clear way why the action cannot be financed from other sources than CEF, including the national tariff systems, and that there is a need for EU funding (at such a substantial co-financing rate) to overcome financial obstacles. Moreover, the financial data presented show a positive net present value even without the CEF grant.
Procedural steps for the adoption by the … Commission of a Decision on the award of grants … are currently ongoing. In the unlikely case that the adoption of this Decision results in changes in relation to your proposal, you will be informed separately by email.
…
Any request
you may make … or any complaint for maladministration, will have neither the purpose nor the effect of suspending the time limit for lodging an action for annulment of the Commission’s decision notified by this message, which must be done within two months of notification of this message. …’
26      On 14 March 2017, the Commission adopted Implementing Decision C(2017) 1593 final on the selection and award of grants for actions contributing to PCIs under the CEF in the field of trans-European energy infrastructure (‘the contested decision’ or ‘the Commission decision of 14 March 2017’). That decision approves the list of PCIs under the CEF which were selected to receive financial assistance from the European Union, and lists the respective maximum amounts of financial assistance. In total, 18 out of the 23 proposals were selected to receive financial assistance.
27      The contested decision was not notified individually to the applicant. That decision was published on the same day, namely 14 March 2017, in the online register of Commission documents and, separately, on INEA’s website.
28      By letter of 5 June 2017, the applicant requested the Commission to send to it a copy of its decision on the proposal of 8 November 2016.
29      On 3 July 2017, the Commission sent to the applicant the contested decision and the preparatory documents for the CEF Coordination Committee meeting of 17 February 2017.
Procedure and forms of order sought
The procedure in Case T‑236/17
30      By application lodged at the Court Registry on 17 April 2017, the applicant brought the action in Case T‑236/17.
31      By separate documents, lodged at the Court Registry on 14 and 18 July 2017 respectively, the Commission and INEA raised pleas of inadmissibility under Article 130 of the Rules of Procedure of the General Court.
32      By document lodged at the Court Registry on 31 August 2017, the Republic of Estonia sought leave to intervene in Case T‑236/17 in support of the form of order sought by the applicant.
33      On 15 September 2017, the applicant submitted its observations on the pleas of inadmissibility.
34      By document lodged at the Court Registry on 6 October 2017, the applicant requested that Case T‑236/17 be joined to the case registered under reference T‑596/17. INEA submitted observations on the request for joinder on 6 October 2017. By decision of 21 December 2017, the President of the Fourth Chamber of the General Court decided not to join the two cases at that stage of the procedure.
35      By way of a measure of organisation of procedure of 27 July 2018, the General Court invited the parties to submit their observations on the consequences to be drawn from the judgment of 28 June 2018, Spliethoff’s Bevrachtingskantoor v Commission (C‑635/16 P, EU:C:2018:510), by which the Court of Justice set aside the order of 11 October 2016, Spliethoff’s Bevrachtingskantoor v Commission (T‑564/15, not published, EU:T:2016:611), and referred the case back to the General Court, with regard to the examination of the pleas of inadmissibility raised by the Commission and INEA in the present case.
36      INEA, the Commission and the applicant complied with that request on 3, 6 and 21 August 2018 respectively. In response to the written question put by the Court, INEA stated that, since the applicant had brought an action for annulment of the Commission decision of 14 March 2017 (Case T‑596/17), the action in Case T‑236/17 had become devoid of purpose. By document lodged at the Court Registry on 21 August 2018, the applicant requested that Case T‑236/17 be joined to the case registered under reference T‑596/17.
37      By order of 10 December 2018, the Court decided to reserve its decision on the pleas of inadmissibility raised by the Commission and INEA for the final judgment.
The procedure in Case T‑596/17
38      By application lodged at the Court Registry on 4 September 2017, the applicant brought the action in Case T‑596/17. By the same document, the applicant requested that Case T‑596/17 be joined with the case registered under reference
T‑236/17.
39      By separate document lodged at the Court Registry on 30 November 2017, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure.
40      By decision of 21 December 2017, the President of the Fourth Chamber of the General Court decided not to join, at that stage of the procedure, Case T‑596/17 with the case registered under reference T‑236/17.
41      By document lodged at the Court Registry on 10 January 2018, the Republic of Estonia sought leave to intervene in Case T‑596/17 in support of the form of order sought by the applicant.
42      The applicant submitted its observations on the plea of inadmissibility on 17 January 2018.
43      By order of 10 December 2018, the Court decided to reserve its decision on the Commission’s plea of inadmissibility for the final judgment.
The procedure in Joined Cases T‑236/17 and T‑596/17
44      By decision of 11 January 2019, the President of the Fourth Chamber joined Cases T‑236/17 and T‑596/17 for the purposes of the written and oral part of the procedure and the final decision.
45      The Commission and INEA lodged their statements in defence on 27 and 28 February 2019 respectively.
46      By decision of 11 March 2019, the President of the Fourth Chamber granted the Republic of Estonia leave to intervene in support of the form of order sought by the applicant.
47      On 25 April 2019, the applicant lodged a reply at the Court Registry.
48      On the same day, the Republic of Estonia lodged a statement in intervention.
49      The Commission and INEA submitted their observations on the statement in intervention on 23 and 24 May 2019 respectively.
50      INEA and the Commission lodged rejoinders on 28 June and 1 July 2019 respectively.
51      Following a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present cases were accordingly allocated.
52      Acting upon a proposal of the Judge-Rapporteur, the Court decided to open the oral part of the procedure.
53      At the hearing held on 8 July 2020, the parties presented their oral arguments and answered the oral questions put by the Court.
Forms of order sought
Forms of order sought in Case T‑236/17
54      In the application, the applicant claims that the Court should:
–        annul the letter of 17 February 2017;
–        order the Commission and INEA to pay the costs.
55      In their respective pleas of inadmissibility, the Commission and INEA contend that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
56      In its observations on the pleas of inadmissibility, the applicant claims that the Court should:
–        reject the pleas of inadmissibility raised by the Commission and INEA;
–        annul the letter of 17 February 2017;
–        order the Commission and INEA to pay the costs.
Forms of order sought in Case T‑596/17
57      In the application, the applicant claims that the Court should:
–        declare, under the third paragraph of Article 265 TFEU, that the Commission did not comply with its obligations under EU law by failing to adopt a reasoned decision regarding the proposal of 8 November 2016, and order the Commission to carry out a thorough evaluation of that proposal in order to adopt a reasoned decision and deliver that decision to the applicant;
–        in the alternative, should the Court find that the conditions required for a finding that the Commission failed to act have not been satisfied, annul the contested decision;
–        order the Commission to pay the costs.
58      In support of the plea of inadmissibility, the Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
59      In the observations on the plea of inadmissibility, the applicant claims that the Court should:
–        reject the plea of inadmissibility;
–        declare, under the third paragraph of Article 265 TFEU, that the Commission did not comply with its obligations under EU law by failing to adopt a reasoned decision regarding the proposal of 8 November 2016, and order the Commission to carry out a thorough evaluation of that proposal in order to adopt a reasoned decision and deliver that decision to the applicant;
–        in the alternative, should the Court find that the conditions required for a finding that the Commission failed to act have not been satisfied, annul the contested decision;
–        order the Commission to pay the costs.
Form of order sought by the parties after the joinder of Cases T‑236/17 and T‑596/17
60      The applicant claims that the Court should:
–        annul the letter of 17 February 2017 and the contested decision;
–        order the Commission and INEA to pay the costs.
61      The Republic of Estonia claims that the Court should:
–        grant the applicant’s requests and annul the contested decision;
–        order the Commission and INEA to pay the costs.
62      The Commission contends that the Court should:
–        dismiss the actions as inadmissible and unfounded;
–        order the applicant to pay the costs.
63      INEA contends that the Court should:
–        dismiss the action in Case T‑236/17 as inadmissible;
–        in the alternative, declare the action in Case T‑236/17 unfounded;
–        order the applicant to pay the costs.
Law
The subject matter of the dispute in Case T‑236/17 and the admissibility of the form of order sought in the observations of 21 August 2018
64      First, the applicant submits that the letter of 17 February 2017 is the only challengeable act. Conversely, in the applicant’s view, the argument of INEA and the Commission that the only challengeable act is the Commission decision of 14 March 2017 is misleading. The decision not to grant financial assistance to the applicant cannot be implicit from that decision. Even though it brought an action for annulment of the Commission decision of 14 March 2017, the applicant maintains that that decision does not even mention it, that the decision does not state any reasons why the proposal of 8 November 2016 was rejected, and that the decision was never notified to it. The applicant argues, in that regard, that the present cases differ from the situation underlying the case which gave rise to the order of 11 October 2016, Spliethoff’s Bevrachtingskantoor v Commission, T‑564/15, not published, EU:T:2016:611), since
‘unlike the circumstances in Case T‑564/15[,] the Applicant has not received a final decision from the Commission over a period exceeding two months’.
65      Second, the applicant submits, in its observations of 21 August 2018, that the position of the Court of Justice in the judgment of 28 June 2018, Spliethoff’s Bevrachtingskantoor v Commission (C‑635/16 P, EU:C:2018:510), is directly transposable to the present case. The applicant argues that the application should be regarded as having been brought against both the letter of 17 February 2017 and the Commission decision of 14 March 2017, since those two acts are part of a group of decisions ‘forming a whole’. It is only in the light of the case-law applicable ‘at the time of filing the application and subsequent observations regarding the inadmissibility of the application’ that the applicant did not expressly request the Court to regard its action as being directed against the Commission decision of 14 March 2017, but brought a separate action, registered under reference T‑596/17, namely an application under Article 265 TFEU seeking a declaration that the Commission unlawfully failed to adopt a reasoned decision regarding the proposal of 8 November 2016 and, in the alternative, seeking annulment of the Commission decision of 14 March 2017.
66      The Commission disputes the applicant’s arguments.
67      INEA reiterates its position,
which, in its view, is confirmed by the judgment of 28 June 2018, Spliethoff’s Bevrachtingskantoor v Commission (C‑635/16 P, EU:C:2018:510), that its letter of 17 February 2017 is a preparatory act. It considers, moreover, that, in accordance with that judgment of the Court of Justice, the application should be regarded as being directed against the Commission decision of 14 March 2017 and that, in view of the identical action registered under reference T‑596/17, it has therefore become devoid of purpose.
68      First of all, it should be recalled that the first paragraph of Article 21 of the Statute of the Court of Justice, which, pursuant to the first paragraph of Article 53 of that Statute, is applicable to the procedure before the General Court, provides that ‘a case shall be brought before the Court of Justice by a written application addressed to the Registrar’ and that ‘the application shall contain the applicant’s name and permanent address and the description of the signatory, the name of the party or names of the parties against whom the application is made, the subject matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based’.
69      Similarly, Article 76(d) of the Rules of Procedure of the General Court provides that the application referred to in Article 21 of the Statute of the Court of Justice of the European Union must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law.
70      According to settled case-law, the information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to decide the case, if appropriate without other information in support. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible (see judgment of 14 May 1998, Enso Española v Commission, T‑348/94, EU:T:1998:102, paragraph 143 and the case-law cited).
71      Furthermore, under Article 76, in conjunction with Article 84, of the Rules of Procedure, the subject matter of the claim must be defined in the application. A claim put forward for the first time in the reply modifies the original subject matter of the application and must therefore be regarded as a new claim and be rejected as inadmissible (see judgment of 11 January 2002, Biret et Cie v
Council, T‑210/00, EU:T:2002:3, paragraph 49 and the case-law cited). The same reasoning applies where the initial subject matter of the application is modified in observations on an objection of inadmissibility (judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 45).
72      In the present case, with regard to the applicant’s request, as set out in its observations of 21 August 2018, that the action be regarded as being directed against the letter of 17 February 2017 and, at the same time, against the Commission decision of 14 March 2017, it should be noted that the applicant, by the form of order sought in the application in Case T‑236/17, merely seeks annulment of the letter of 17 February 2017. Furthermore, the application states that ‘the only measure [which is] binding and affect[s] the interests of the Applicant by bringing about the distinct change in its legal position is the Decision of 17 February 2017’.
73      It follows that the subject matter of the action, as is apparent from the arguments and form of order sought in the application in Case
T‑236/17, concerns, exclusively, annulment of the letter of 17 February 2017.
74      Furthermore, in so far as the applicant submitted, in those observations of
21 August 2018, a new head of claim seeking annulment of the Commission decision of
14 March 2017, such a head of claim must be rejected as being inadmissible in accordance with the case-law cited in paragraph 71 above.
75      The finding in paragraph 73 above cannot be called into question by the solution reached in the judgment of 28 June 2018, Spliethoff’s Bevrachtingskantoor v Commission (C‑635/16 P, EU:C:2018:510). In that case, the Commission’s final decision of 31 July 2015 had not yet been published on the date on which the action was brought, which led the Court of Justice to find that the then applicant had not been in a position to be able
to identify, in its application, the Commission’s decision (judgment of 28 June 2018, Spliethoff’s Bevrachtingskantoor v Commission, C‑635/16 P, EU:C:2018:510, paragraphs 68 and 70). By contrast, in the present case, the applicant was in a position to identify the Commission decision of 14 March 2017 at the time when the action was brought on 17 April 2017, as that decision had been published on 14 March 2017 in the online register of Commission documents and, separately,
on INEA’s website. Furthermore, in the case which gave rise to the judgment of 28 June 2018, Spliethoff’s Bevrachtingskantoor v Commission (C‑635/16 P, EU:C:2018:510), the applicant had expressly requested the General Court to regard its application as being directed against the Commission’s final decision of 31 July 2015 notified by INEA’s email (order of 11 October 2016, Spliethoff’s Bevrachtingskantoor v Commission, T‑564/15, not published, EU:T:2016:611, paragraph 18). In the present case, the applicant has, on the contrary, stated at all stages of the procedure that its application sought
annulment of the letter of 17 February 2017 although, according to its observations of 21 August 2018, that letter and the Commission decision of 14 March 2017, taken together, form part of a group of decisions ‘forming a whole’. In that regard, it should be noted that, in addition to the inconsistency of that claim, in so far as the applicant expressly submitted, in the application in Case T‑236/17, that that application sought exclusively the annulment of the letter of 17 February 2017, it is apparent from the case-law that, as will be developed in greater detail in paragraphs 87 and 88 below, acts are open to review only if they are measures definitively laying down the position of the institution on the conclusion of that procedure, and not provisional measures intended to pave the way for the final decision (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10, and of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 42), and that the preparatory nature of the contested act constitutes one of the barriers to the admissibility of an action for annulment. Consequently, the applicant’s arguments presuppose that the application brought
solely against the letter of 17 February 2017 is admissible, in that that letter constitutes a measure which definitively establishes the Commission’s position and can therefore be the subject of an action for annulment.
76      In the light of the foregoing, it must be held that the annulment of the letter of 17 February 2017 is the sole purpose of the action in Case T‑236/17.
Admissibility
The admissibility of Case T‑236/17
77      In support of its plea of inadmissibility, the Commission puts forward two pleas of inadmissibility, the first alleging that the letter of 17 February 2017 is not challengeable, and the second alleging that the Commission is not the author of that act and, consequently, the action cannot be directed against it. INEA also claims, in support of its plea of inadmissibility, as does the Commission, that the letter of 17 February 2017 is a preparatory act not open to legal challenge.
78      The first plea of inadmissibility raised by the Commission, which corresponds to the single plea of inadmissibility raised by INEA, should be examined first.
79      The Commission submits, in essence, that the letter of 17 February 2017 is a preparatory act and, therefore, is not an act open to legal challenge.
80      The Commission adds that, since that letter expressly refers to a procedure pending before it, such an act cannot be regarded as determining its definitive position.
81      INEA contends, first of all, as does the Commission, that the letter of 17 February 2017 is a preparatory act which led to the adoption of the Commission decision of 14 March 2017 and, therefore, is not an act open to legal challenge. In accordance with Article 5(2)(d)
of Commission Decision C(2013) 9235 final of 23 December 2013
delegating powers to INEA with a view to the performance of tasks linked to the implementation of Union programmes in the field of transport, energy and telecommunications infrastructure and in the field of transport and energy research and innovation comprising, in particular, implementation of appropriations entered in the general budget of the Union (‘the delegation decision of 23 December 2013’), INEA cannot adopt an award decision on behalf of the Commission in respect of grants awarded under the CEF, since that is a task reserved for the Commission.
82      Next, INEA notes that, from the very wording of the letter of 17 February 2017, it is clear that it does not constitute a decision, but a mere letter of information to let the candidate know about the (forthcoming) rejection of its proposal.
83      Finally, INEA maintains that the applicant was not deprived of an effective judicial remedy given that it was able to challenge the final decision once it had been adopted, especially since the letter of 17 February 2017 stated that that decision was being prepared. The applicant was aware of the course of the procedure through the Guide for Applicants and could have found out, by reading the list of projects selected for funding under the second call for proposals under the CEF in the field of energy (2016), as featured on the websites of the Commission and INEA
and in the online register of Commission documents, that, at the time when the present action was brought, a final decision had been taken and that that meant that the applicant’s application for financial assistance had been definitively rejected. According to the case-law, it is for a party which has knowledge of a decision concerning it to request the whole text thereof within a
reasonable period.
84      The applicant, for its part, considers that the action is admissible. First, it argues that the letter of 17 February 2017 was not a preparatory act, but a final decision of the Commission and INEA on its application, since, first, the subject matter and content of that decision were clearly expressed in that letter
and, second, the Commission itself had indicated that it was possible to challenge the letter of 17 February 2017 by bringing ‘an action for annulment of the Commission’s decision notified by this message’, which thus shows that the Commission considered that the letter of 17 February 2017 was binding.
85      The applicant states that the letter of 17 February 2017 has binding effects on it because the reasoning underlying the letter goes beyond the decision not to accept the proposal of 8 November 2016 and is based on considerations which are outside the competence of the Commission and INEA.
86      Second, the applicant takes the view that, even though the Commission and INEA mentioned in the letter of 17 February 2017 that, if there were to be any changes in relation to the applicant’s proposal of 8 November 2016, the applicant would be informed of that separately, there was no such communication, and the applicant was not aware of any other decisions that the Commission and INEA had taken in regard to it. The letter of 17 February 2017 is, therefore, the final document in which the Commission and INEA expressed their intention not to accept the proposal of 8 November 2016. If the letter of 17 February 2017 were to be regarded as being preparatory in nature, the applicant would have no effective judicial remedy. The applicant adds that, at the same time, the Commission and INEA publicly announced on the CEF website that there would be a new call for proposals in the field of energy during April 2017.
87      It should be noted at the outset that, according to settled case-law, measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position are acts or decisions which may be the subject of an action under Article 263 TFEU (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 16 July 1998, Regione Toscana v Commission, T‑81/97, EU:T:1998:180, paragraph 21).
88      More specifically,
acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, are in principle acts open to review only if they are measures definitively laying down the position of the institution on the conclusion of that procedure, and not provisional measures intended to pave the way for the final decision (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10, and of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 42). It follows that the preparatory nature of the contested act is one of the obstacles to the admissibility of an action for annulment.
89      It is in the light of the foregoing considerations that it is necessary to examine whether the letter of 17 February 2017 constitutes a decision which definitively establishes the position of the Commission or INEA and against which an action for annulment may be brought.
90      In that regard, in order to assess whether the letter of 17 February 2017 is challengeable, its content must first be analysed. That examination shows that the content of the letter is twofold.
91      First, the information on the remedies available to the applicant and on the time limits
applicable to those remedies
suggest that the letter of 17 February 2017 is notifying a final decision of the Commission. The details
concerning the possibility of
bringing an action and the
procedure for doing so
expressly refer to ‘the Commission’s decision notified by this message’ and refer to the deadline for bringing an action for annulment which runs from the notification of the letter of 17 February 2017. That reference to the time limit for bringing an action could have been interpreted by the applicant as a reference to a final decision of the Commission rejecting – at least partially – its proposal, although such a decision was not, however, expressed in greater detail in the letter of 17 February 2017.
92      Second, the letter of 17 February 2017 refers expressly, on several occasions,
to a procedure pending before the Commission. In accordance with the timetable contained in section 5 of the call for proposals of 30 June 2016 and in accordance with the information contained in the Commission’s press release of 30 June 2016, the letter sets out the stage of the procedure, stating that the CEF Coordination Committee, which is composed of representatives of the Member States, delivered a positive opinion on the draft list drawn up by the Commission regarding the proposals selected for financial assistance from the European Union. INEA is thus informing the applicant that its application was not selected at that stage of the procedure.
93      Furthermore, as regards the provisional nature of the letter of 17 February 2017, it should be noted that that letter states that the procedure for the adoption of the Commission decision on the award of grants was ongoing and that it was possible – but unlikely – that the adoption of the decision might lead to changes in relation to the proposal of 8 November 2016.
94      Thus, it is apparent from the letter of 17 February 2017 that the Commission had not yet made a final assessment in the context of the procedure leading to the adoption of the final decision, provided for in Article 18 of the CEF Regulation, closing the procedure for setting the amount of financial assistance to be granted to the selected projects or parts of those projects.
95      The content of the letter of 17 February 2017
is therefore twofold, including both elements liable to create the impression of a final position and elements of a provisional nature.
96      The juxtaposition of such passages in the letter of 17 February 2017 shows that the Commission had not yet taken the decision provided for in Article 18 of the CEF Regulation.
A decision may not, unless it is a partial decision, include both provisional and final assessments (judgment of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 54). In the present case, however, the Commission did not indicate that it intended to split the procedure into two parts and to conclude one of those parts immediately, which allows the possibility of a partial decision to be ruled out.
97      An analysis of the full text of the letter of 17 February 2017 therefore shows that it does not constitute a final Commission decision on the proposal of 8 November 2016, but solely
interim information at a stage of the procedure during which
changes were still possible.
98      It should be noted that that situation is in accordance with the examination procedure as provided for in Articles 18 and 25 of the CEF Regulation and brought to the attention of the applicant and the other candidates by means of the call for proposals of 30 June 2016 and the Commission’s press release of the same day, a procedure in which the Commission, assisted by the CEF Coordination Committee, is required to decide on the amount of financial assistance to be granted to the selected projects or to parts of those projects. Thus, the Commission’s final position was set by the adoption of the decision of 14 March 2017 establishing – following the CEF Coordination Committee’s positive opinion on the provisional list – the list of proposals accepted for financial assistance from the European Union in the field of the CEF.
99      In the light of all of the foregoing, it must be stated that the letter of 17 February 2017 does not definitively set the Commission’s position and, therefore, cannot be regarded as an act open to legal challenge.
100    That assessment cannot be called into question by the arguments put forward by the applicant.
101    As regards, in the first place, the argument that the classification of the letter of 17 February 2017 as an act
of a preparatory nature deprives the applicant of the right to an effective judicial remedy, it must be noted that any legal defects in measures of a purely preparatory nature
may be relied upon in an action directed against the definitive act for which they represent a preparatory step (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12, and order of 2 June 2004, Pfizer v Commission, T‑123/03, EU:T:2004:167, paragraph 24). In the present case, by application lodged at the Court Registry
on 4 September 2017 (case registered under number
T‑596/17), the applicant brought an action against the Commission decision of 14 March 2017, which in principle gives the applicant the possibility to rely on any irregularity in the letter of 17 February 2017 as a preparatory act for the Commission decision of 14 March 2017.
102    As regards, in the second place, the applicant’s argument that it did not receive a final decision from the Commission within two months of the communication of the letter of 17 February 2017 and that INEA announced the publication of a new call for proposals in the field of energy in April 2017, it is sufficient to note that, as well as the possibility of requesting that the whole text of that final decision be sent
to it (see, to that effect, order of 5 March 1993, Ferriere Acciaierie Sarde v Commission, C‑102/92, EU:C:1993:86, paragraph 18), the protection of the applicant’s rights has been ensured by the possibility of seeking a ruling from the Court, in the context of an action, on whether or not the communication addressed to it was a decision against which an action could be brought (see, to that effect, judgment of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 64). In addition, the applicant has not demonstrated to what extent the publication of information relating to the publication of a call for proposals in the field of energy in 2017 was connected to the second call for proposals published in 2016 under the CEF (Energy) in which it participated.
103    In the third place, as regards the applicant’s argument that the letter of 17 February 2017 is binding on it in that the reasoning underlying that letter goes beyond the proposal of 8 November 2016 and stems from considerations which are beyond the competence of the Commission and INEA, it is sufficient to refer to the matters discussed in paragraphs 87 to 99 above, according to which it is a preparatory act, and to note that the question of whether the reasoning goes beyond the proposal of 8 November 2016 is not part of the assessment as to the admissibility of the action, but is part of the assessment of its merits.
104    It follows from all of the foregoing that the action in Case T‑236/17, in so far as it is directed against an act which is not capable of being the subject of an action for annulment, must be dismissed as inadmissible.
105    The first plea of inadmissibility raised by the Commission, which corresponds to the single plea of inadmissibility
raised by INEA, must therefore be upheld.
106    In the light of the foregoing, the action in Case T‑236/17 must be dismissed as inadmissible, without it being necessary to decide whether the claim for annulment, as submitted in the application, is also partially inadmissible as a result of the second plea of inadmissibility raised by the Commission.
107    Furthermore, and for the sake of completeness, even if that action were admissible, it would have to be dismissed on its merits as a result of the reasoning set out in paragraphs 119 to 212 below (see, to that effect, judgment of 11 December 2014, Heli-Flight v EASA,
T‑102/13, EU:T:2014:1064, paragraph 112).
The admissibility of Case T‑596/17
108    In its action in Case T‑596/17, the applicant made an application for a declaration of failure to act, on account of the alleged absence of a reasoned decision relating to the proposal of 8 November 2016 and, in the alternative and in the event that the Court were not to grant the application for a declaration of failure to act, an application for annulment of the contested decision.
–       The admissibility of the application for a declaration of failure to act
109    The Commission submits that, although it is true, as the applicant argues, that Article 133 of the Financial Regulation provides that, in the context of an evaluation procedure for the award of grants,
‘the authorising officer responsible shall inform applicants in writing of the decision on their application’, the delegation decision of 23 December 2013
delegated that task to INEA, which did indeed inform the applicant by letter of 17 February 2017 of the forthcoming decision. The contested decision is a global award decision, which includes the list of selected project proposals. Therefore, conversely, the proposals which were not selected are not included in the Commission decision, which remains challengeable in that it does not mention the applicant among the successful candidates.
110    The applicant takes the view that the Commission did not adopt a decision concerning it
because, following its request referred to in paragraph 28 above, it received only the contested decision, which contains only a list of the projects which had been granted funding and did not include any reference to the projects which had not been not granted funding. The applicant argues that it should be in a position to challenge a decision adopted specifically in respect of the proposal of 8 November 2016, and that it should not be forced to deduce from a decision relating to other projects that that proposal had been rejected and why it was rejected. Article 133(2) of the Financial Regulation requires, in particular, that each applicant be informed of the decision on
its application and Article 133(3) of the Financial Regulation provides that, if the grant requested is not awarded, the institution concerned must give the reasons for the rejection of the application, with reference in particular to the selection and award criteria. The Commission, the applicant submits,
in no way complied with those requirements. The applicant adds that, under the fourth paragraph of Article 288 TFEU, the contested decision cannot be binding on it in since it does not specify the applicant as an addressee.
111    Under the second paragraph of Article 265 TFEU, ‘the action [for failure to act] shall be admissible only if the institution, body, office or agency concerned has first been called upon to act’ and ‘if, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months’.
112    If the invitation to act is to be capable of setting in motion the procedure for an action for failure to act, it must be expressed with sufficient clarity and precision for the institution to have a clear idea of the content of the decision sought. It must be clear from the invitation to act
that its purpose is to compel the institution, body, or agency concerned to state its position and to indicate that it constitutes a preliminary to legal proceedings (see, to that effect, order of 30 April 1999, Pescados Congelados Jogamar v Commission,
T‑311/97, EU:T:1999:89, paragraphs 35 and 37, and judgment of 11 December 2014, Heli-Flight v EASA,
T‑102/13, EU:T:2014:1064, paragraph 111 and the case-law cited).
113    In the present case, it is apparent from the very wording of the letter of 5 June 2017 that it refers to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), and is in the form of an application for access to a document in accordance with Article 2(1) of that regulation. Furthermore, no mention
or reference in the letter reveals that it constitutes a preliminary to contentious proceedings. It follows that the letter of 5 June 2017 cannot constitute a call to act under the second paragraph of Article 265 TFEU (see, to that effect, order of 30 April 1999, Pescados Congelados Jogamar v Commission, T‑311/97, EU:T:1999:89, paragraph 37).
114    Consequently, the plea of inadmissibility raised by the Commission must
be upheld and the action for failure to act must be dismissed as inadmissible.
–       The admissibility of the claim for annulment
115    Since the Court has
dismissed the action for failure to act as inadmissible, the alternative claim for annulment of the contested decision must be examined.
116    In support of its plea of inadmissibility, the Commission submits that the action was not brought within the two-month period laid down in the sixth paragraph of Article 263 TFEU.
117    According to settled case-law, the EU Courts are entitled to assess, according to the circumstances of the case, whether the proper administration of justice justifies the dismissal of the action on the merits without first ruling on the objection of inadmissibility raised by the defendant (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52, and of 23 March 2004, France v Commission, C‑233/02, EU:C:2004:173, paragraph 26).
118    In the circumstances of the present cases, the pleas put forward by the applicant in the present actions must be examined from the outset, without first ruling on the plea of inadmissibility raised by the Commission, since the actions are, in any event and for the reasons set out below, unfounded.
The substance
119    The applicant relies, in essence, on three pleas in law alleging, first, that the Commission and INEA did not have competence to adopt a negative decision regarding its proposal of 8 November 2016, since that decision has the effect of modifying the list of PCIs in which the applicant’s project is included, second, infringement of the obligation to state reasons and, third, in essence, manifest errors of assessment made by the Commission and  INEA with regard to the applicant’s proposal of 8 November 2016.
120    It is appropriate, first of all, to examine the first plea in law, then the third plea in law and, finally, the second plea in law.
The first plea in law, alleging that the Commission and INEA did not have competence
121    The applicant submits, first of all, that, by stating in the letter of 17 February 2017 that,
‘taking into account already the existing infrastructure[, the Klaipėda terminal,] and the infrastructure under development (Balticconnector and enhancement of [Estonia-Latvia] and [Latvia-Lithuania] interconnectors), particularly for Estonia it is considered that the regional security of supply level is sufficient without the Paldiski terminal and the benefits for Finland are disputable’, the Commission and INEA exceeded their competence. The statement that the Paldiski project is no longer a priority in the region due to its lack of cross-border dimension entails a substantial modification of the TEN‑E Regulation and Delegated Regulation 2016/89, which establish Estonia as the location for a LNG terminal for the Baltic region and the Paldiski terminal as a PCI. Consequently, such a change to the PCI list requires the adoption of a delegated regulation by the Commission, compliance with the procedure laid down in that regard, in particular under
Article 3(3) of the TEN‑E Regulation, and
the involvement and consent of all the Member States for the Baltic Energy Market Interconnection Plan (‘BEMIP’).
122    Next, according to the applicant, under
Article 4(1) of the TEN‑E Regulation, all PCIs must satisfy the cross-border criteria and the criterion that the project must be necessary for at least one of the energy infrastructure priority corridors and areas, of which the Baltic Sea region
gas energy markets form a part. Given that the requirements that a project must have a cross-border dimension and that it must be necessary are criteria for its inclusion in the PCI list, and given that the Paldiski project was included in the PCI list, the Commission and INEA exceeded their competence in rejecting the proposal of 8 November 2016 on the ground referred to in paragraph 121 above. Furthermore, PCI status is necessary in order to receive funds under Article 14(1) and (2) and Article 4(3) of the TEN‑E Regulation.
123    Finally, the applicant states that the wording of the letter of 17 February 2017 reproduced in paragraph 121 above contains such a definitive statement that, even though the Commission and INEA acknowledge that, in the CEF application process, the evaluation relates to grant applications under the CEF and not to the inclusion of projects in the PCI list, the Commission and INEA in fact assessed the Paldiski project as a PCI and denied that that project had any cross-border dimension.
124    The Commission and INEA dispute the arguments put forward by the applicant.
125    As a preliminary point, it should be noted that, under Article 18 of the CEF
Regulation, the Commission is to decide, in accordance with the examination procedure referred to in Article 25 of that regulation, on the amount of financial assistance to be granted to the selected projects or to parts of those projects.
126    Furthermore, it is important to bear in mind that the Paldiski project was recognised as a PCI
within the meaning of Article 3(4)
of the
TEN‑E Regulation for the BEMIP gas priority corridor by Delegated Regulation No 1391/2013 and that that PCI status was maintained by Delegated Regulation 2016/89 until the entry into force of the third EU PCI list established by Delegated Regulation 2018/540, which no longer included the Paldiski project.
127    In that context, it should be noted that, in so far as, first, the Commission had, under Article 18
of the CEF Regulation, competence to adopt the contested decision on 14 March 2017 and, second, the applicant has not conclusively demonstrated
an amendment to the
EU PCI list other than the amendment effected by Delegated Regulation 2018/540, the contested decision did not alter the PCI status of the Paldiski project and the applicant has not demonstrated that the Commission exceeded its powers in adopting the contested decision. In that regard, it must be noted that the applicant’s general assertion that, in essence, the wording of the letter of 17 February 2017, set out in paragraph 121 above, entails a substantive amendment to the TEN‑E Regulation and to Delegated Regulation 2016/89, which establish Estonia as the location for an LNG terminal for the Baltic region
and the Paldiski terminal as a PCI, amounts to a peremptory assertion which is neither substantiated nor demonstrated.
128    This assertion by the applicant in the first plea in law does not demonstrate that the Commission exceeded its powers, but refers to a manifest error of assessment. Thus, in so far as, as the applicant also submits, the cross-border dimension of the project is a criterion both in the context of the application procedure for the CEF and for inclusion of that project in the list of PCIs, the reasoning in the contested decision is at odds with that inclusion in the PCI list. Consequently, the applicant’s other arguments seeking to demonstrate that the Commission exceeded its powers will be examined below in the context of the third plea in law relating to manifest errors of assessment.
The third plea in law, alleging manifest errors of assessment
129    The applicant disputes, in particular, the Commission’s assessment of the second, fourth, sixth and seventh criteria for the award of the grants in question, which relate, respectively,
to the cross-border dimension, the need to overcome financial obstacles, the stimulating effect of CEF financial assistance, and the priority and urgency of the project, criteria that were given a score of 1 point (regarding the stimulating effect of the financial assistance) or 2 points, which was not sufficient to meet the minimum acceptance threshold to be recommended for the award of funding, namely 3 points before weighting.
130    First, as regards the second criterion, relating to the cross-border dimension, in the first place, the applicant submits that it follows from the PCI lists based on Article 3 of the TEN‑E Regulation, EU guidance documents and regional initiatives (BEMIP) that an LNG terminal in the region is necessary, and that the location of that terminal is Paldiski, in Estonia. Since, according to the applicant, the Tallinn LNG terminal did not submit an application for CEF funding in the second CEF call for proposals in 2016, the Paldiski project is the only project in the region that has a cross-border dimension, generates regional benefits for
the security of supply and can promote the implementation of an EU energy strategy. Furthermore, when the contested decision was adopted, the Tallinn LNG terminal project had, according to the European Ten Year Network Development Plan 2017 (TYNDP 2017),
‘less advanced’ status whereas the Paldiski project was considered ‘advanced’.
131    The applicant states that the need for a regional LNG terminal in the Eastern Baltic Sea was identified in the BEMIP 2009 Memorandum of Understanding, in which the Paldiski project was listed as a regional LNG terminal project. A regional approach to the new gas infrastructure was maintained in the BEMIP 2015 Memorandum of Understanding and also at the end of 2016, when the continued isolation of the Estonian, Latvian, Lithuanian and Finnish gas markets, as well as access to limited supply sources and the inadequacy of the regional gas market, were identified by the BEMIP Gas Regional Group meeting. Furthermore, the Commission had, as early as 2014, specifically confirmed the need for a regional LNG terminal, particularly since all countries of the Eastern Baltic region (Finland, Estonia, Latvia and Lithuania) were fully dependent on Russian natural gas. It was confirmed at that stage that the Baltic LNG terminal, which was to be located either in Estonia or in Finland, constituted the key part of security of supply in the infrastructure projects. The Paldiski project was included in the first and second PCI lists based on Article 4(1) and 4(2)(b) of the TEN‑E Regulation, which establishes the cross-border element and security of supply as the main criteria for inclusion in the PCI list. However, after Finland abandoned its LNG terminal project in late 2015, and due to the removal of the Finnish and Latvian LNG terminals from the 2015 PCI list, Estonia remained the only location for a regional Baltic Sea LNG terminal. The 2015 PCI list therefore included the Paldiski and Tallinn LNG terminals as PCIs. According to the applicant, the fact that, at the end of 2015, the Klaipėda terminal was not included in the PCI list, whereas the Paldiski LNG terminal was included,
indicates that, contrary to the argument of the Commission and INEA regarding the supposed change in situation of the Baltic
Sea gas market since December 2014, the arrival of the Klaipėda terminal was not, at the time, regarded as having a significant impact on the situation of the Baltic Sea gas market. In so far as the Commission and INEA refer to the fact that the Finnish Government has recently decided to continue the construction of five small-scale LNG terminals along its coastline, the applicant counters that, when the contested decision was adopted, there were only three such terminals and those low-capacity terminals do not meet the country’s needs.
132    In the second place, the applicant claims that the other existing infrastructures in the region fail to fulfil EU objectives of providing security of supply and the most economic solution. First, Balticconnector and the interconnections between Estonia and Latvia, and between Latvia and Lithuania, do not increase the security of supply because those pipelines do not add new sources of natural gas to the region. Second, due to the low amount of imports from the Klaipėda terminal, the temporary nature of the terminal, the lack of non-discriminatory access to it and its lack of PCI status, the Klaipėda terminal does not ensure security of supply in the region, does not satisfy the conditions for the most economic solution and cannot be relied on to support the finding that, in view of the existing infrastructure, the Paldiski project manages to show in only a limited manner significant externalities in the region in terms of security of supply.
133    In that respect, the applicant states, first of all, that the region continues to depend on a sole supplier of gas
given that access to the Klaipėda terminal is very limited technically and economically. It is true that, in 2015, gas exports from Lithuania to Estonia represented 20% of total Estonian imports. However, that increase in exports was not connected to the opening of the Klaipėda terminal, but was attributable to the fact that, in Lithuania, prices were connected to the spot market, whereas the prices in Estonia were indexed based on the price of crude oil, and this resulted in the export of pipeline gas from Lithuania at Lithuanian prices. By contrast, in 2016, gas exports fell, and Estonia imported only 7% of its natural gas from Lithuania. The applicant argues that this fall in gas exports was caused by the fact that, in 2016,
Estonian prices reached Lithuanian indexed prices, with the result that there was no economic sense in purchasing gas at the Lithuanian prices. In that regard, first, the applicant notes that the costs of leasing the Klaipėda terminal are included in a natural gas security of supply charge added to the price of natural gas, and that gas prices in the region have not fallen. Second, the applicant submits that Gazprom decreased its prices at that time,
but that it did so, however,
not in order to compete with the opening of the Klaipėda terminal but because of the antitrust investigation ongoing at the time in the European Union. The applicant adds that the region’s dependence on Russian gas is also confirmed by the fact that the demand for gas supplies from the Klaipėda terminal decreased in 2016. In particular, the supply of gas from Russia to Lithuania increased from 38.5% in 2016 to 54% in 2017, whereas the corresponding supply of LNG from the Klaipėda terminal decreased from 60% to 40%.
134    In so far as the Commission and INEA submit that, in 2025, gas demand in the three Baltic States will be between 4.2 and 4.5 billion m3 per year and is likely to fall further, the applicant responds that no document or analysis supports such an estimate. According to the applicant, since Balticconnector was already to be in place by 2019, the region to be taken into consideration in terms of gas demand should also include Finland. Moreover, numerous directives have been adopted, setting out rules on the use of transport fuel which will lead to an increased use of gas.
135    Next, the applicant argues that the Klaipėda terminal serves as a temporary solution for Lithuania following the closure of the nuclear power station in Ignalina (Lithuania). LNG provided to Klaipėda comes from a vessel leased by the Lithuanian Government from Höegh LNG in Norway under a 10-year lease agreement. In view of the overall objective of supporting energy projects, which is to ensure the long-term development of the infrastructure up to 2050, the perspective offered by the Klaipėda terminal is not in line with the objectives of the TEN‑E Regulation.
136    Finally, market participants do not have non-discriminatory access to the Klaipėda LNG vessel. The designated supplier under the relevant Lithuanian legislation has preferential access to terminal capacities and other suppliers may request available capacity only if the first supplier has not requested access to that capacity. As a result of, first, the rules on capacity reservation, which provide for the imposition of fines for non-use, and, second, the volatility of LNG prices, it is not economically feasible to accept the reservation of terminal capacity under such conditions. The low volume of imports, as indicated in paragraph 133 above, confirms the lack of economic incentives for the use of Klaipėda terminal capacity by suppliers other than the designated supplier.
137    Furthermore, according to the applicant, the Klaipėda terminal has never been a PCI since the commissioning of that terminal was not conducted in a coordinated manner that would have included other
countries of that region in the development of the project.
138    Second, as regards the fourth criterion relating to the need to overcome financial obstacles, in the first place, the applicant notes that, in section 3.12 of the funding application form, under the heading ‘Part D: technical and financial information’, it had shown that the Paldiski project would have a negative net present value without a 40% grant. The cost-benefit analysis (‘the CBA’) confirms, first of all, that the Paldiski terminal cannot be regarded as commercially viable in its current design
without an external grant, whether national or European. Next, according to that analysis, if the net present value of equity is not above zero, it will be impossible to attract private capital to the Paldiski terminal project. Finally,
according to the CBA, two major
Scandinavian banks also operating in Estonia confirmed their interest in the project under the abovementioned funding structure and stated that funding based on a public grant would be necessary for the project to have commercial appeal for the banks.
139    In so far as INEA contends, in paragraph 115 of its defence, that the financial data provided by the applicant ‘show a positive net present value even without CEF grants’ for the project (not for equity), the applicant submits that, if the project does not receive CEF financial assistance, then the regulated asset base increases, as does the average tariff that the terminal could charge. According to the applicant, that could ensure a positive result in terms of the net present value and internal rate of return. However, if the tariff were to increase, then LNG would also be more expensive for the consumer, and that would impact negatively on both the forecasted flows of LNG and revenues. This could end in a situation where the terminal’s tariff would be too high to attract sufficient demand.
140    In the second place, the applicant submits that both the CBA and the Cross-Border Cost Allocation agreement concluded between the Estonian competition authority and the energy authority in Finland, submitted with the proposal of 8 November 2016, show that the Paldiski project cannot be financed by national tariffs and that the project is not financially or commercially feasible without a public grant.
141    Furthermore, the applicant states that it sought other possibilities for financing the project from national tariff systems and that it indicated clearly in the proposal of 8 November 2016 why financing based on those tariffs was not possible. Both the Finnish and Estonian transmission system operators (TSOs) indicated that the Paldiski terminal was a commercial project which would not be supported from the tariffs of those operators.
142    Third, as regards the seventh criterion, relating to the priority and urgency of the project, the applicant submits that the region is in urgent need of a sustainable and affordable solution for new gas supplies. According to sections 8.1.1. and 8.1.2. of Annex VII to the TEN‑E Regulation, as amended by Delegated Regulation 2016/89, the Balticconnector and an LNG terminal in Estonia are necessary for the BEMIP gas priority corridor, but the whole region continues to remain dependent on Russian natural gas since the only additional natural gas supply point is the Klaipėda terminal, which is not competitive on an open market due to its high infrastructure price. According to the applicant, a grant of CEF financial assistance
would also not distort competition, given that the Klaipėda terminal is merely a temporary solution, which will be in place until 2024, whereas the Paldiski terminal is planned to be operational for a longer period.
143    Fourth, as regards the sixth criterion relating to the stimulating effect of CEF financial assistance, the applicant notes that, as stated with regard to the criterion relating to the need to overcome financial obstacles, the CBA showed that a public grant was necessary, and both the Estonian competition authority and the Finnish energy authority explained in the agreement referred to in paragraph 140 above that the construction costs of the Paldiski LNG terminal, as a commercial project, would not be supported from the tariffs of the transmission system operators.
144    The Republic of Estonia argues that the Commission’s evaluation of the second and seventh award criteria in relation to the proposal of 8 November 2016, which led to the conclusion that the Klaipėda terminal was sufficient to ensure security of supply in the region, is based on two incorrect premisses. First, the Republic of Estonia considers that a terminal which is being operated under a 10-year lease ending in 2024 cannot ensure the region’s long-term security of supply or the existence of alternative sources of supply. Second, the assessment of security of supply should take into account the comparison between the daily capacity of the Klaipėda terminal to supply gas and the region’s maximum daily consumption. An analysis of the security of gas supply in Finland and
the Baltic States, carried out in 2016, shows that the region’s gas needs correspond to a maximum daily consumption of 58.5 million m3 of gas, whereas the maximum regasification capacity of the Klaipėda terminal is 10.3 million m3 of gas per day. If any supply of piped gas from Russia were interrupted, the region would be exposed to a serious shortage of gas, even if the Klaipėda terminal were functioning at full capacity. This shows that there is a long-term need for an LNG terminal in the region.
145    The Commission and INEA dispute the arguments put forward by the applicant and the Republic of Estonia.
146    First of all, it should be borne in mind that the proposals submitted for the CEF in the field of energy infrastructure, in response to the call for proposals of 30 June 2016, were evaluated by the Commission in the light of the criteria specified in the decision on the multiannual work programme and in that call for proposals. In that regard, the call for proposals of 30 June 2016 sets out seven criteria for the award of grants under the which the proposals are assessed: (i) degree of maturity of the action; (ii) cross-border dimension of the action;
(iii) extent of positive externality provided by the action; (iv) need to overcome financial obstacles; (v) soundness of the implementation plan proposed for the action;
(vi)
stimulating effect of CEF financial assistance on the completion of the action, and (vii) priority and urgency of the action. Each grant award criterion is given a score between 0 and 5 points. The minimum acceptance threshold for each criterion is 3 points before weighting and a proposal that does not achieve at least 3 points for each criterion is not selected.
147    Consequently, each of the grounds given to justify the award of a score of between 0 and 2 points is, on its own, sufficient as a basis for the decision not to accept the proposal of 8 November 2016 for CEF funding (see, to that effect, judgment of 14 February 2008, Provincia di Imperia v Commission, T‑351/05, EU:T:2008:40, paragraph 37). In those circumstances, that decision should be annulled, in principle, only if each of those grounds is
unlawful. In that event, an error or other illegality which affects only one of those pillars of reasoning cannot be sufficient to justify the annulment of the contested decision since that error or illegality could not have had a decisive influence as regards the refusal of CEF funding.
148    With regard, next, to the application of the award criteria, as set out in paragraph 146 above, it should be noted that, in the area of the grant of financial assistance, the Commission enjoys a wide discretion as regards the existence of the conditions justifying the grant of such assistance
(see judgment of 14 February 2019, Poland v Commission, T‑366/17, not published, EU:T:2019:90, paragraph 35 and the case-law cited).
149    In that respect, it is useful to note that, as regards the application of the provisions on the Funds, it has already been held that the Commission enjoys a wide discretion when it is called upon to assess complex facts and accounts (see, to that effect, judgment of 6 June 2007,
Mediocurso v Commission, T‑251/05 and
T‑425/05, not published, EU:T:2007:162, paragraph 73 and the case-law cited), as when it is called upon to assess a major project on the basis of the information contained in the request for confirmation referred to in Article 40 of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25), the coherence of the major project with the priorities of an operational programme, its contribution to the achievement of the objectives of those priorities and its coherence with other EU policies, in order to assess the purpose and impact of that major project and the methods by which it is proposed that the EU resources will be used (see judgment of 14 February 2019, Poland v Commission, T‑366/17, not published, EU:T:2019:90, paragraph 36 and the case-law cited).
150    As regards the Commission’s evaluation of a project such as, in the present case, the Paldiski LNG terminal, which involves complex technical evaluations requiring the use of external experts, it should be noted that considerations similar to those set out in paragraph 149 above can be taken into account as regards the discretion enjoyed by the Commission.
151    In those circumstances, the Court’s judicial review of such an assessment is limited to verifying that the Commission did not make a manifest error of assessment and, to that end, it is for the applicant to adduce any matters of law or fact to show that the Commission’s assessment is vitiated by such an error (see judgment of 14 February 2019, Poland v Commission, T‑366/17, not published, EU:T:2019:90, paragraph 38 and the case-law cited; see also, to that effect, judgment of 19 May 1994, Consorzio gruppo di azione locale
‘Murgia Messapica’
v Commission, T‑465/93, EU:T:1994:56, paragraph 47). Furthermore, that review implies that the EU
Courts determine whether the evidence adduced by the applicant is sufficient to render implausible the assessments of the complex economic facts made in the contested decision (see, to that effect, judgments of 12 December 1996, AIUFFASS and AKT v Commission, T‑380/94, EU:T:1996:195, paragraph 59, and of 12 February 2008, BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 221).
Subject to that review of plausibility, it is not the Court’s role to substitute its assessment of the relevant complex economic facts for that made by the institution which adopted the decision. In such a context, review by the Court consists in ascertaining that the Commission complied with the rules of procedure and the rules relating to the duty to give reasons and also that the facts relied on were accurate and that there was no error of law, manifest error of assessment or misuse of powers (see judgment of 12 February 2008, BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 221 and the case-law cited).
152    Finally, it is important to note that, in an action for annulment under Article 263 TFEU, the legality of an EU measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted (see judgment of 20 July 2017, Badica and Kardiam v Council,
T‑619/15, EU:T:2017:532, paragraph 46 and the case-law cited).
153    It is in that context that the Court is required, in the present case, to determine whether the reasons for rejecting the Paldiski project which were set out in the letter of 17 February 2017 and which
underlie the contested decision (see paragraph 201 below) are, as the applicant claims, vitiated by
manifest errors of assessment.
154    With regard to the assessment of the second criterion, relating to the cross-border dimension, it should be noted that, under that criterion, the applicant was awarded 2 points and that, according to the reasoning in the letter of 17 February 2017, ‘the proposal [of 8 November 2016] fails to demonstrate the cross-border dimension [of the Paldiski project] as the alleged benefits in terms of security of supply and solidarity in the region are only claimed and do not seem to bring real added value for the region’, ‘the proposal [of 8 November 2016] shows limitations in showing the significant externalities in the [region] in terms of security of supply, taking into account already the existing infrastructure (Klaipėda LNG) and the infrastructure under development (Balticconnector and enhancement of [Estonia-Latvia] and [Latvia-Lithuania] interconnectors); particularly for Estonia it is considered that the regional security of supply level is sufficient without the Paldiski [project] and the benefits for Finland are disputable’.
155    At the outset, it must be noted that section 9 of the call for proposals of 30 June 2016 states, with regard to the second criterion, that ‘this criterion refers to the extent of the cross-border impact of the action, taking into consideration the area, the number of Member States positively impacted by the action (as seen in relation to the geographical location of the action) and the level of cooperation between the involved countries’.
156    The applicant submits that, under the TEN‑E Regulation and Delegated Regulation 2016/89, which designate Estonia as the location of the LNG terminal for the Baltic region and the Paldiski terminal as a PCI, a regional LNG terminal is required and the location of that terminal is in Paldiski, Estonia. Since the Tallinn LNG terminal did not apply for CEF funding in the second CEF call for proposals in 2016, the Paldiski project has
remained the only project in the region with a cross-border dimension, as a result of the Paldiski project having PCI status.
157    In that regard, first, it should be noted that there is no automatic process whereby PCI status necessarily means that the project concerned has a cross-border dimension sufficient to justify the grant of CEF financial assistance.
158    In the first place, the procedure for identifying and selecting PCIs differs from the CEF procedure. As the applicant itself submits, the amendment of the EU PCI list requires the adoption of a delegated regulation by the Commission and the procedure laid down in that regard requires, inter alia, according to
Article 3(3) of the TEN‑E Regulation, the participation of the Member States in the process of identifying PCIs, whereas the CEF procedure is managed by the Commission and INEA. The selection of projects to be co-financed by the CEF is based on selection and award criteria defined in accordance with the procedure laid down in Article 17 of the CEF Regulation and in accordance with the objectives and priorities set out in Articles 3 and 4 of that regulation. Consequently, that selection is based on procedural and substantive criteria which differ from those defined in the TEN‑E Regulation. It follows that, according to Article 7(1) of the CEF Regulation,
PCI status is a necessary, but not a sufficient, condition for benefiting from EU financial assistance, which is also evidenced by Article 14 of the TEN‑E Regulation, according to which PCIs are eligible for EU financial assistance, which means that such assistance is not granted automatically but also requires the examination of selection and award criteria. INEA rightly adds that, if the situation were otherwise, namely if PCI status were sufficient for the purpose of obtaining EU financial assistance or for meeting the second award criterion, relating to the cross-border dimension, the evaluation of that award criterion in the context of the CEF calls for proposals would not be required.
159    In the second place, although the inclusion of the Paldiski project on the first and second lists of PCIs
presupposes, under Article 4(1)(c) of the TEN‑E Regulation, read in conjunction with point (d) of paragraph 1 of Annex IV to that regulation,
a significant cross-border impact, that does not necessarily result in the award of a specific score between 0 (very poor) and 5 (excellent) points
in the assessment of the corresponding CEF award criterion. By contrast, according to section 9 of the call for proposals of 30 June 2016, referred to in paragraph 155 above, the second award criterion refers to the significance of the cross-border impact, as is apparent from the CEF grant application. It is therefore the significance of the cross-border impact that is decisive in that respect. The award of 2 out of 5 points for the Paldiski project demonstrates that that project has a cross-border dimension – a finding which is not, therefore, at odds with PCI
status – but that that was insufficient to satisfy the second award criterion.
160    In the third place, it should be pointed out that, although it appears, as the applicant submits, that a regional terminal is necessary, which, moreover, the Commission confirmed by arguing that its position has always been that there should be only one Baltic regional LNG terminal and that there is no market for two large-scale LNG terminals, the fact remains that the PCI status of the Paldiski project, within the meaning of Delegated Regulation 2016/89 and at the time of the contested decision, does not prejudge the need to grant CEF financial assistance. In addition to the fact that, as stated above, PCI status is a necessary, but not a sufficient,
condition for the grant of CEF financial assistance, it must be noted that there is no basis to the applicant’s argument that, since the Tallinn LNG terminal did not submit an application for CEF funding in the second CEF call for proposals in 2016, the Paldiski project has
remained the only project in the region with a cross-border dimension, confirmed by the fact that the Paldiski project had PCI status.
161    In that regard, it is sufficient to state that, for the purposes of determining the significance of the cross-border impact, and contrary to the applicant’s contention, it is entirely irrelevant whether the Tallinn LNG terminal or the Klaipėda LNG terminal submitted applications for CEF funding in the second CEF call for proposals in 2016. Those two terminals may have a cross-border dimension by having evolved without EU co-financing, without having participated in the second
CEF call for proposals in 2016 and, moreover, without having applied for PCI status. The Commission and INEA, moreover,
rightly argue that the fact that a given gas infrastructure, such as the Klaipėda terminal, has never applied for PCI status does not mean that it should not be taken into account in the CBA of another gas infrastructure. On the contrary, the CBA must take into account all existing gas infrastructures. Consequently, the conclusions drawn by the applicant from the documents dating from 2009 to 2014, that is to say, before the commissioning of the Klaipėda terminal, are no longer valid in view of the change of situation which occurred with the commissioning of that terminal.
162    It should be added that, contrary to the applicant’s contention, the fact that, at the end of 2015, the Klaipėda terminal was not on the PCI list, whereas the Paldiski project was included on that list,
does not indicate that the arrival of the Klaipėda terminal was not, at that time, regarded as having a significant impact on the situation of the Baltic Sea gas market. In that respect, the Commission has clarified that the evaluation of the second list of EU PCIs – based on the results of the previous European 10-year network development plan for which data collection took place in 2013 and the first half of 2014 – had been carried out before the Klaipėda terminal became operational, with the result that the arrival of the latter could not be taken into account. When the Klaipėda terminal became operational, its status was that of an ‘already existing project’ and could not be included on the PCI list.
163    Consequently, by referring to its PCI status and the proposal of
8 November 2016 under the CEF in the second CEF call for proposals in 2016, the applicant has not demonstrated that the Paldiski project was the only project in the region with a cross-border dimension and should for that reason be granted CEF financial assistance. It follows that, contrary to what the applicant submits, the fact that the Paldiski terminal has PCI status in competition with the Tallinn LNG terminal, which did not, however, apply for CEF funding, does not mean that CEF financial assistance had to be granted to the Paldiski terminal.
164    Second, in so far as, according to the second criterion, relating to the cross-border dimension, the significance of the cross-border impact of the Paldiski project alone is decisive, it should be noted that the applicant, as regards its project’s own
contribution to security of supply in the region, did not call into question the Commission’s assessment that, in the proposal of 8 November 2016, the applicant was able to demonstrate only to a limited extent the significant externalities of the project in the region in terms of security of supply.
165    Without it being disputed by the applicant, the Commission and INEA stated that the essential security-of-supply benefits of the Paldiski project had been calculated only for Estonia and Finland. In particular, the Commission and INEA argued that, in view of its claimed regional dimension, four Member States, namely Lithuania, Latvia, Estonia and Finland, should benefit from the advantages of that project. However, first, the applicant had excluded Lithuania from the CBA attached to the proposal of 8 November 2016, on the assumption that the project would not generate benefits for that country and, second, that analysis had indicated that, for Latvia, the total net security of supply benefits for that country would amount to only around 8% of its needs.
166    Furthermore, third, while the contested decision justifies the finding that the proposal of 8 November 2016 demonstrates only to a limited extent the significant externalities in the region in terms of security of supply by relying on the already existing infrastructure (the Klaipėda terminal) and the infrastructure under development, the applicant disputes that assessment by arguing that the other existing infrastructures in the region do not meet the objectives set by the European Union
in regard to
security of supply or the concept of the most economic solution.
167    It must be noted that none of the arguments put forward by the applicant is capable of establishing that the Commission’s assessment that the proposal of 8 November 2016 was awarded 2 out of 5 points because it demonstrates only to a limited extent the significant externalities in the region in terms of security of supply, in view of the already existing infrastructure
(the Klaipėda terminal) and the infrastructure under development, is vitiated by a manifest error of assessment.
168    In the first place, it should be noted that the applicant, when claiming that, due to the low amount of imports from the Klaipėda terminal, the region continues to depend on a sole supplier of gas, namely Gazprom, and that, therefore, the Klaipėda terminal does not meet the conditions for the most economic solution and cannot be relied on in support of the Commission’s finding referred to in paragraph 167 above, has not demonstrated that the region’s dependence on Gazprom has remained unchanged since the appearance of the Klaipėda terminal and that the Paldiski project could contribute to security of supply in any more than a limited way.
169    First of all, it is useful to note that the figures used by the parties show that the positive impact of the commissioning of the Klaipėda terminal on the market in the region has already materialised.
170    It is common ground that, before the Klaipėda terminal was commissioned at the end of 2014, Lithuania, Estonia and Latvia were dependent on a sole supplier of gas, namely Gazprom, and that, since the commissioning of the terminal, prices have fallen. In that regard, the applicant has argued that the costs of leasing the Klaipėda terminal were included in a security-of-supply tax on natural gas added to the price of natural gas and that gas prices in the region have not decreased.
By contrast, in the reply, the applicant amended its observations in that regard, stating that Gazprom had reduced prices in 2016, which, however, had not been caused by the competitive situation resulting from the commissioning of the Klaipėda terminal, but because of the antitrust investigation under way at that time in the European Union.
171    The applicant’s latter argument that an antitrust investigation was the cause of the price reduction is not supported by any precise and detailed evidence. Without providing further explanations, the applicant refers to a Commission press release of 4 September 2012 concerning the opening of formal antitrust proceedings against Gazprom, which does not make it possible to establish that that antitrust investigation induced Gazprom to reduce its prices in 2016.
172    Irrespective of whether that antitrust investigation caused Gazprom to lower its prices, it should be noted, as the applicant itself submits, that, after the commissioning of the Klaipėda terminal, gas exports from Lithuania to Estonia had reached at least 20% of total Estonian imports, whereas, before the commissioning of the Klaipėda terminal, there were no gas exports from Lithuania to Estonia. The reason for that situation lay in
the price difference between the two countries, whereas, according to the applicant, in 2016, when Estonian prices aligned with Lithuanian prices, so that it was no longer economically relevant to purchase gas at Lithuanian prices, exports fell and Estonia imported only 7% of its natural gas from Lithuania.
173    Consequently, it is common ground that, first, the rate of gas exports from Lithuania to Estonia is influenced by a possible price difference between those two countries and that, for a certain period of time, the price of gas supplied by the Klaipėda terminal allowed an increase in gas exports from Lithuania to Estonia until Gazprom lowered its prices, which had the effect of making LNG supply less competitive than pipeline gas.
174    It follows from the foregoing that, contrary to the applicant’s contention, the facts not in dispute demonstrate the impact of the commissioning of the Klaipėda terminal on competition.
175    Next, as regards the impact of the commissioning of the Klaipėda terminal on the security of gas supply, which forms the basis of the contested decision, it should be noted that the arguments put forward by the applicant in support of its assertion that the region would continue to depend on Gazprom as its sole supplier of gas, namely the low rates of gas exports from Lithuania to Estonia from 2016 and the increase in gas supply from Russia to Lithuania from 38.5% in 2016 to 54% in 2017, and the corresponding decrease in LNG supply by the Klaipėda terminal from 60% to 40%, do not demonstrate that the Commission’s assessment that, taking into account the existing infrastructure and the infrastructure under development, the proposal of 8 November 2016 demonstrates to only a limited extent the significant externalities in the region, is vitiated by a manifest error of assessment.
176    Irrespective of whether, in the light of the case-law cited in paragraph 152 above, the applicant can use the figures for the calendar year 2017 to challenge the legality of the contested decision, it must be noted that the Klaipėda terminal, following the decline in gas exports from Lithuania to Estonia in 2017, had been
used at only 40% of its capacity, a fact which is not disputed.
177    As INEA
correctly submits, the fact that the Klaipėda terminal was not used at full capacity in 2017 does not mean that it cannot operate at full capacity if necessary. Furthermore, when LNG prices are competitive in comparison with the prices of pipeline gas, or when LNG is necessary for security of supply, that terminal could attract the interest of customers in the region, given that the necessary infrastructure is already available. Consequently, contrary to what the applicant submits, the fact that, after 2016, imports from the Klaipėda terminal as well as the supply of LNG from that terminal to Lithuania decreased cannot
demonstrate that that terminal does not contribute to security of supply in the region or that that region continues to rely on Gazprom as the sole supplier of gas. On the contrary, if Gazprom ceased delivery of pipeline gas or if it returned to its pricing prior to 2015, the LNG of the Klaipėda terminal could once again
attract the interest of customers in the region.
178    In that context, it should be noted that, in the contested decision, security of supply was assessed not only in the light of the existence of the Klaipėda terminal, but also in the light of the existence of other gas infrastructure under development, namely the Balticconnector and the strengthening of the interconnections between Estonia and Latvia, on the one hand, and between Latvia and Lithuania, on the other. As the applicant itself submits in paragraph 61 of the reply and contrary to its assertions in paragraph 91
of the application, since the Balticconnector, from 2019 onwards, will connect Finland to the Baltic States, it will also provide Finland with a new source of gas supply given that the Klaipėda
terminal already supplies LNG to the Baltic States.
179    In the second place, in so far as the applicant bases its conclusion that the Klaipėda terminal does not end the region’s dependence on Gazprom on the temporary nature of that terminal, it must be noted that the parties agree that one of the objectives of the trans-European energy infrastructure policy is to make it possible to achieve the EU’s
energy and climate objectives towards 2050. The applicant, supported by the Republic of Estonia, argues that, since the LNG supplied to Klaipėda comes from a vessel located in Norway, leased by the Lithuanian Government from Höegh LNG under a 10-year lease agreement, that limited perspective offered by the Klaipėda terminal is not consistent with the objectives of the TEN‑E Regulation, which seeks to ensure the long-term development of the infrastructure up to 2050.
180    However, since, as is apparent from recital 7 of the TEN‑E Regulation, the European Union has to prepare its infrastructure for further decarbonisation of its energy system in the longer term towards 2050, that argument of the applicant does not demonstrate that the Commission’s assessment is vitiated by a manifest error of assessment. As the Commission stated in response to a question put by the Court at the hearing, it was difficult to anticipate, at the time when the contested decision was adopted, what the situation will be in 2024. The Commission did not overstep the bounds of its discretion by arguing that, in view of the trans-European energy infrastructure policy of reducing the number of PCIs in the gas sector, the inclusion of the Klaipėda terminal, which, when the contested decision was adopted, already existed in the region and was to operate for at least another eight years, left sufficient time to determine the number of gas infrastructure projects actually required in the long term in the region.
181    In the third place, with regard to the absence of non-discriminatory access to the Klaipėda terminal, the applicant, without challenging the Commission’s assertion that that LNG terminal operates under the third party access rules, puts forward several circumstances, which, in its view, result in it being not ‘economically viable’ to use the capacity of that terminal. However, in that regard, it should be noted that the applicant has still failed to demonstrate to what extent those circumstances relating to access to that terminal lead to the conclusion that the Klaipėda terminal does not guarantee security of supply in the region and cannot be relied on in support of the conclusion that, in view of that existing infrastructure, the Paldiski project demonstrates to only a limited extent the significant externalities in the region in terms of security of supply.
182    The applicant’s observations are contradictory inasmuch as, on the one hand, it criticises the fact that the designated supplier under the relevant Lithuanian legislation has preferential access to the Klaipėda terminal’s capacity and that other suppliers
can request access to the available capacity only if that designated supplier has not requested access to that available capacity, but, on the other hand, it follows from its own observations that there is no lack of ‘available capacity’ since it argues that, between 2016 and 2017, the supply of LNG by the Klaipėda terminal
fell from 60% to 40% and that the low volume of imports confirms the lack of economic incentives for the use of the Klaipėda terminal’s capacity. Consequently, in view of the Klaipėda terminal’s unused capacity, it is not plausible to take the view that any preferential access for the supplier designated by Lithuania to ‘available capacity’ results in it not being
‘economically viable’ to use that terminal’s capacity.
183    Furthermore, as has been noted in paragraphs 169 to 174 above, after the commissioning of the Klaipėda terminal, such use of that terminal’s capacity by Estonia took place and the impact of that commissioning on competition is established. It follows that, contrary to the applicant’s contention that the low volume of imports from 2016 onwards confirms the lack of ‘economic incentives for the use of capacity of the Klaipėda terminal’ by suppliers other than the designated supplier, the rate of gas exports from Lithuania to Estonia is influenced by a possible price differential between those two countries and that, for a certain period of time, the price of gas supplied by the Klaipėda terminal allowed an increase in gas exports from Lithuania to Estonia until Gazprom lowered its prices, which made supplying LNG less competitive than pipeline gas. In that regard, INEA
correctly states that, under recital 48 of the CEF Regulation,
it is important to avoid any distortion of competition, in particular between projects contributing to the achievement of the same EU priority corridor. The Klaipėda terminal already exists in the region and the Paldiski project would be in direct competition with that terminal if it were to come into service during that terminal’s life cycle. In such situations, the award of CEF grants for work on specific projects would be likely to lead to significant distortions of competition since it would be EU funding that would allow a project to set lower tariffs for its users and thus be more advantageous than an existing plant.
184    In the fourth place, as regards the applicant’s argument that the Klaipėda terminal has never been a PCI, it is sufficient to refer to the observations
set out in paragraphs 157 to 163 above, which establish that a gas infrastructure such as the Klaipėda terminal can have a cross-border dimension by being viable without EU co-financing and that the fact that such a gas infrastructure has never applied for PCI status does not mean that it should not be taken into account in the CBA of another gas infrastructure.
185    In the fifth place, in so far as the Republic of Estonia submits that, for the purposes of assessing whether the Klaipėda terminal is sufficient to guarantee security of supply in the region, that assessment should take into account the comparison between the daily gas supply capacity of that terminal and the maximum daily consumption in the region, it should be noted that the Republic of Estonia has failed to adduce any factual or legal elements capable of establishing that the Commission’s assessment in that regard is vitiated by manifest errors of assessment.
186    The Republic of Estonia submits that gas requirements
in Finland and the Baltic countries correspond to a maximum daily consumption of 58.5 million m³ of gas, whereas the maximum regasification capacity of the Klaipėda terminal is 10.3 million m³ of gas per day, which, it argues,
shows that there is a long-term need for a second LNG terminal in the region. The Commission and INEA rightly argue in response that gas is easy to store when demand is low, so that it can be used at peak demand times. Consequently, the Republic of Estonia’s argument that the maximum regasification capacity of the Klaipėda terminal is not sufficient, on its own, to cover peak gas demand does not render the Commission’s assessment of the facts in the contested decision implausible. Furthermore, the Republic of Estonia has not refuted the arguments of the Commission and INEA that the Baltic States avail of underground gas storage in Inčukalns (Latvia), which has a gas withdrawal capacity of 28 million m³ per day and which, in conjunction with the other PCIs
in the region, in particular the Poland-Lithuania gas interconnector (PLGI) which should be completed in 2021, is sufficient to cover peaks in gas demand.
187    Finally, in so far as the Commission and INEA, in their statements of defence, state that the Klaipėda terminal’s capacity is 4 billion m³ per year and can therefore cover 90% of the gas demand of the three Baltic States, which will be between 4.2 and 4.5 billion m³ per year in 2025, the applicant
correctly submits that the region to be taken into account in terms of gas demand should also include Finland.
188    However, it does not follow from that argument of the applicant that the contested decision is vitiated by a manifest error of assessment. It follows from that decision, which takes into account not only the existing infrastructure, namely the Klaipėda terminal, but also the infrastructure under development, that it took into consideration the need to ensure security of supply for Finland, finding that the benefits of the Paldiski project for Finland were questionable. More specifically, it is stated in the contested decision that, with regard to Estonia, the regional security of supply level is sufficient, while
the decision does not deny that the Paldiski project makes a limited contribution to security of supply for Finland, but considers that that limited contribution is insufficient under the CEF, awarding it a score of 2 out of 5 points.
The Commission cannot be regarded as having overstepped the bounds of its discretion by finding that, in spite of the Paldiski project’s limited contribution to security of supply for the Eastern Baltic Sea, in view of the already existing infrastructure, a second Baltic
regional LNG terminal did not warrant the award of CEF financial assistance.
That is all the more so the case as it is common ground that the Klaipėda terminal was, in 2017, used at only 40% of its capacity.
189    In view of the foregoing, it must be concluded that the Commission’s assessment of the second award criterion, relating to the cross-border dimension, is not vitiated by a manifest error of assessment.
190    It follows that the first part of the third plea in law must be rejected as unfounded. Furthermore, for the reasons set out in paragraph 147 above, the third plea in law must be rejected in its entirety.
The second plea in law, alleging infringement of the obligation to state reasons
191    The applicant submits, first of all, that the contested decision – which is not addressed to the applicant and does not mention the applicant – does not state reasons and does not enable the applicant to ascertain the reasons why the proposal of 8 November 2016 did not receive funding. Similarly, the letter of 17 February 2017 did not provide the applicant with sufficient information to understand why the Commission and INEA did not grant funding for its project. In that letter, the applicant argues, the Commission and INEA informed the applicant of the scores awarded for seven different criteria and provided an explanation in one paragraph. However, the explanations are very general and the reasons for awarding a score of less than the necessary number of points were not explained clearly in relation to each criterion. More specifically, although the letter of 17 February 2017 provided the respective weightings of the criteria based on the final result, it is not possible to establish a specific correlation between the brief comments made by INEA and the Commission and the deductions of points, a situation in which, in the judgment of 3 May 2018,
EUIPO v European Dynamics Luxembourg and Others (C‑376/16 P, EU:C:2018:299, paragraphs 66 and 67), the Court of Justice held that the lack of detailed explanation constituted insufficient legal reasoning.
192    In particular, with regard to the second criterion, relating to the cross-border dimension,
the explanation provided in the letter of 17 February 2017 does not, in the applicant’s view, relate to the three components of the cross-border dimension provided in the Guide for Applicants, namely (a) the area of impact of the action and cooperation between Member States and with third countries; (b) the financial contribution of the Member States to the envisaged action; and (c) the cross-border allocation of costs. With regard to the seventh criterion, relating to the priority and urgency of the action, according to the applicant, INEA submits that the letter of 17 February 2017 explains that ‘there [was] already an infrastructure in Klaipėda and the infrastructure under development’, and thus ‘it [was] considered that the regional security of supply level [was] sufficient’. In so far as that explanation is the same as the explanation provided for the lack of a cross-border dimension, the applicant argues that it cannot be regarded as clear and sufficient reasoning. As regards the fourth and sixth criteria, relating respectively to the need to overcome financial obstacles and to the stimulating effect of CEF financial assistance on the completion of the action, the letter of 17 February 2017 stipulates only that ‘the cost-benefit analysis [does] not demonstrate in a clear way why the action cannot be financed from other sources than CEF’. However, according to the applicant, that cannot be regarded as proper reasoning because no explanation is provided as to which elements of the analysis were not convincing.
193    Next, the applicant observes that the other sources of information available to the candidates, in particular the general explanations in the call for proposals of 30 June 2016 and the decision on the multiannual work programme, which, to a large extent, reiterates the applicable rules of the TEN‑E and CEF Regulations without providing any detailed explanation
whatsoever on the method of assessing those criteria, do not enable the applicant to gauge to what extent its project met those criteria. By contrast, as regards the other documents, namely the application forms, the Guide for Applicants and the FAQs, these are not legal rules and, therefore, cannot be taken into account.
194    Finally, the applicant submits that the Commission cannot rely on the judgment of 14 May 1998, Windpark Groothusen v Commission (C‑48/96 P, EU:C:1998:223), in support of its contention that it was not necessary to provide a detailed statement of reasons in the present case. According to the applicant, the circumstances underlying the present case are very different to those of the case which gave rise to that judgment.
195    The Republic of Estonia
takes the view that the contested decision does not contain adequate substantive reasons for the adoption of that decision. In its opinion, while it is true that the letter of 17 February 2017 states that the applicant had not obtained sufficient points when
all the award criteria were evaluated, that letter does not explain why the points needed were not obtained and does not identify what reasoning applied to which criteria. It submits that the judgment of 14 May 1998, Windpark Groothusen v Commission (C‑48/96 P, EU:C:1998:223), does not justify a different conclusion since the present case does not match the circumstances which gave rise to that judgment.
196    The Commission and INEA dispute the arguments put forward by the applicant and the Republic of Estonia.
197    According to settled case-law, the statement of reasons required by
Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measures taken and to enable the competent court to exercise its jurisdiction to review legality (see, to that effect, judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147, and of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 49 and the case-law cited).
198    Thus, in the context of individual decisions, it is settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is, in addition to permitting judicial review, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error allowing its validity to be challenged (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 148 and the case-law cited).
199    The statement of reasons required by
Article 296 TFEU must be appropriate to the measure at issue and the context in which it was adopted. It is settled case-law that the requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 53 and the case-law cited).
200    In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables that person to understand the scope of the measure concerning him or her
(judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 54, and of 9 December 2014, BelTechExport v Council, T‑438/11, not published, EU:T:2014:1044, paragraph 84).
201    In the present case, it should be noted that the obligation to state reasons for the contested decision must be assessed in the light of the criteria specified in the letter of 17 February 2017, in the decision on the multiannual work programme and in the call for proposals of 30 June 2016.
202    It follows that the information set out in the contested decision, as supplemented by the information contained in particular in the letter of 17 February 2017 and in the call for proposals of 30 June 2016, is such as to enable the applicant, even without any explicit reference to it in the contested decision, to understand that the proposal of 8 November 2016 was not selected since it had not achieved, for each criterion assessed, a result of at least 3 points before weighting. In particular, with regard to the second award criterion, relating to the cross-border dimension, for which it was awarded 2 points before weighting, the letter of 17 February 2017 made it possible for the applicant to understand that the Commission had found that, in the proposal of 8 November 2016, the applicant was able to demonstrate only to a limited extent, both, on the one hand, the significant externalities in the region in terms of security of supply, since the proposal concerned essentially only Estonia and Finland, and, on the other hand, the benefits of its project in view of the existence of the Klaipėda terminal and the infrastructure under development.
203    In so far as the applicant submits that the comments contained in the letter of 17 February 2017 did not enable it to establish a specific correlation with the scores awarded for the fourth, sixth and seventh criteria, it must be noted that that argument is, for the reasons set out in paragraphs 147 and 190 above, ineffective.
204    With regard to the second award criterion, contrary to what the applicant and the Republic of Estonia submit, the contested decision provides an explanation which corresponds to the additional explanations for that award criterion contained in the call for proposals of 30 June 2016, namely, as stated in section 9 of that call, ‘the extent of the cross-border impact of the action, taking into consideration the area [concerned and] the number of Member States positively impacted by the action’. It is apparent from the contested decision and from the letter of 17 February 2017 that the alleged benefits in terms of security of supply and solidarity in the region do not appear to bring any real added value for the region, since the regional security of supply level is sufficient for Estonia without the Paldiski terminal and the resulting benefits for Finland are disputable.
205    In so far as the applicant criticises, moreover, and contrary to its observations that the Guide for Applicants does not constitute a rule of law and cannot, therefore, be taken into consideration, an alleged imperfect match between the explanation relating to the second criterion, based on the cross-border dimension, as set out in the Guide for Applicants, and the summary of the evaluation provided in the letter of 17 February 2017, it should be noted, first of all, that, although the Guide for Applicants as such does not constitute a rule of law and does not add requirements which were not initially set out in the call for proposals of 30 June 2016, it is nevertheless part of the context which makes it possible to interpret those requirements (see, to that effect, judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 53 and 54 and the case-law cited). Next, it should be pointed out that the observations in the contested decision, reproduced in
paragraph 204 above, correspond to the explanations contained in the Guide for Applicants concerning the area of influence of the action and cooperation between Member States and with third countries. Finally, it is important to note that, according to the case-law cited in paragraph 199 above, the statement of reasons does not have to state all the relevant matters of fact and law. In that regard, INEA rightly submits that, although the information provided in the Guide for Applicants is intended to explain in a better manner the content of the second criterion, the obligation to provide an adequate statement of reasons does not, however, mean that it is necessary to explain in detail each sub-element of the criterion.
206    As regards the applicant’s criticism that the statement of reasons in the contested decision cannot be regarded as clear and sufficient inasmuch as the reference to existing infrastructure and the infrastructure under development had served as an explanation both for the second award criterion, relating to the cross-border dimension, and for the seventh criterion, relating to the priority and urgency of the action, it must be noted that the context of the call for proposals of 30 June 2016 shows that the conditions of the award criteria overlap. As is apparent from the explanations of the award criteria in section 9 of the call for proposals of 30 June 2016, the contribution of a project to the internal energy market to the extent to which the project ends energy isolation and contributes to the removal of bottlenecks is assessed under the seventh criterion. It follows that the extent of the contribution to the removal of bottlenecks in the internal energy market will often be the same as the conditions of the second award criterion, namely the significance of the cross-border impact of the action, taking into account the area concerned, the number of Member States positively impacted by the action and the level of cooperation between the countries concerned. Consequently, there is not an exclusive relationship between the different award criteria and the same circumstance may exert a positive or negative influence over the way in which different award criteria are evaluated. It follows from the overlapping of those award criteria that the absence of a clear delimitation between those criteria in the contested decision cannot justify the complaint that the statement of reasons is not clear and sufficient.
207    It should, moreover, be noted that the applicant was in a position usefully to challenge the validity of the contested decision’s rejection of the proposal of 8 November 2016, which is demonstrated by the applicant’s arguments set out in support of the third plea in law alleging manifest errors of assessment, in which it calls into question the merits of the reasons put forward by the Commission in respect of the applicant, including the explanations in the letter of 17 February 2017, in particular with regard to the issue of security of supply in the region and the need to have, in addition to the existing LNG terminal in Klaipėda, more than one LNG terminal in that region. Furthermore, the applications (paragraphs 43 and 60 of Case T‑236/17 and paragraphs 75
and 92 of Case T‑596/17) demonstrate that, contrary to what the Republic of Estonia contends, the applicant was in a position to identify which reasoning applied to the criteria of the cross-border dimension and of the need to overcome financial obstacles.
208    It follows that the applicant cannot argue that it was not in a position to understand the reasons which led the Commission, in the contested decision, not to accept its proposal of 8 November 2016.
209    That finding cannot be invalidated by the applicant’s argument based on an alleged ‘deduction of points’. According to the applicant, ‘although the [letter] of 17 February 2017 provides for the respective weightings of the criteria towards the final outcome, at the same time, it is obviously not possible to establish a specific correlation between the brief comments made by INEA/Commission and the deductions of points’. In a similar situation, the Court of Justice, in the judgment of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others (C‑376/16 P, EU:C:2018:299, paragraphs 66 and 67), assessed that lack of a detailed explanation as constituting insufficient legal reasoning. In that regard, it must be noted that, in that judgment, the Court of Justice confirmed its case-law that it is not necessary for ‘a specific weighting to be attached to every negative or positive comment in the evaluation’ and that, ‘that being said, in a situation where the procurement documents contain specific quantified weightings attached to criteria or sub-criteria, the principle of transparency requires a quantified evaluation to be given in respect of those criteria or sub-criteria’
(judgments of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 21, and of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others, C‑376/16 P, EU:C:2018:299, paragraphs 57 and 63). In that case, the evaluation committee had applied a mathematical formula or had awarded fractions of points in respect of sub-criteria or sub-points and the evaluation report contained specific negative assessments in that regard which had given rise to specific deductions of points
(judgment of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others, C‑376/16 P, EU:C:2018:299, paragraph 65). Furthermore, the possible deduction of net points in respect of certain sub-criteria or sub-points automatically resulted, under the formula applied, in the increase in the number of gross points to be allocated to the successful tenderers’ tenders in respect of their technical quality, that deduction
entailing, as a result, a corresponding increase in points in favour of the other tenderers (judgment of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO, T‑556/11, EU:T:2016:248, paragraph 251).
210    By contrast, as the Commission correctly notes, in the present case, such a mathematical formula containing specific quantified weightings attached to the criteria or sub-criteria does not exist. Section 9 of the call for proposals of 30 June 2016 requires the award of a score of between 0 and 5 points for each award criterion, indicating that the acceptance threshold for each award criterion is 3 points before weighting and clarifying the weighting for each criterion at the time of weighting, but does not set out a more sophisticated formula or calculation method to be applied and does not require the deduction of specific points for a range of predetermined comments. It follows that the applicant cannot rely on the absence of a ‘specific correlation’ between the Commission’s comments and an alleged ‘deduction of points’ according to a predefined scheme, which was neither applied in the contested decision nor set out in the call for proposals of 30 June 2016.
211    Consequently, the plea in law alleging an infringement of the obligation to state reasons must also be rejected.
212    It follows from all of the foregoing that the action must be dismissed.
Costs
213    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, according to Article 135(2) of the Rules of Procedure, the General Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought. The General Court may, inter alia, order an institution whose decision has not been annulled to pay the costs on account of the inadequacy of that decision, which may have led an applicant to bring an action
(see judgment of 22 April 2016, Ireland and Aughinish Alumina v Commission, T‑50/06 RENV II and
T‑69/06 RENV II, EU:T:2016:227, paragraph 276 and the case-law cited).
214    In the proceedings in Case T‑596/17, since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
215    In the proceedings in Case T‑236/17, the applicant has also been unsuccessful. However, in the context of the examination of the present action, it has been found, in paragraph 95 above, that the content of the letter of 17 February 2017 is twofold, comprising both elements which are liable to create the impression of a final position and elements of a provisional nature. In those circumstances, the Court considers it fair and equitable to order INEA to bear its own costs and to pay the costs incurred by the applicant, with the Commission being ordered to bear its own costs.
216    The Republic of Estonia shall bear its own costs, pursuant to Article 138 of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the actions;
2.      Orders the Innovation and Networks Executive Agency (INEA) to bear its own costs and to pay those incurred by Balti Gaas OÜ in Case T‑236/17, the European Commission being ordered to bear its own costs in that case;
3.      Orders Balti Gaas OÜ to bear its own costs and to pay those incurred by the Commission in Case T‑596/17;
4.      Orders the Republic of Estonia to bear its own costs.
Schwarcz
Iliopoulos
Norkus
Delivered in open court in Luxembourg on 16 December 2020.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.