62014TJ0639(01)_RES
Case T‑639/14 RENV RENV II
Dimosia Epicheirisi Ilektrismou AE (DEI)vEuropean Commission
Judgment of the General Court (Sixth Chamber, Extended Composition) of 12 November 2025
(State aid – Electricity supply tariff – Conclusion of an arbitration agreement in order to fix the tariff – Decision to close the complaint – Decision finding no aid – Right to be heard – Advantage – Private investor test – Complex economic assessment)
Action for annulment – Reference to the General Court – Setting aside of the judgment of the General Court by the Court of Justice and referral of the case back to the General Court – Assessment by the General Court of all the pleas in law in support of annulment put forward – Exception – Points of law definitively adjudicated on by the Court of Justice
(Rules of Procedure of the General Court, Art. 191)
(see paragraphs 36-41)
Aid granted by a Member State – Concept – Assessment according to the criterion of the private investor – Price dispute between a State-controlled electricity supplier and its principal customer – Decision by the electricity supplier to entrust the resolution of the dispute to an arbitration tribunal – Examination of whether an advantage was conferred on the principal customer by that decision – Applicability of the private investor test – Impossibility for the electricity supplier to foresee the electricity supply price fixed by the arbitration award – Irrelevant
(Art. 107(1) TFEU)
(see paragraphs 46, 51-54, 67-85)
Aid granted by a Member State – Examination by the Commission – Preliminary review and main review – Commission’s duty to initiate the main review procedure in the event of serious difficulties – Price dispute between a State-controlled electricity supplier and its principal customer – Decision by the electricity supplier to entrust the resolution of the dispute to an arbitration tribunal – Examination of whether an advantage was conferred on the principal customer by that decision – Assessment according to the criterion of the private investor – Decision of the Commission finding that there is no State aid without initiating the formal investigation procedure – No serious difficulties requiring the Commission to initiate the formal investigation procedure
(Art. 108 TFEU)
(see paragraphs 102-111, 148, 154, 161, 166, 170, 174-200)
Acts of the institutions – Withdrawal – Unlawful acts – Commission decision to take no further action on a complaint seeking a finding of infringement of the provisions of the FEU Treaty relating to State aid – Adoption of a new decision repealing and replacing the decision not to take further action on the complaint – Decision finding no State aid – Decision adopted at the end of the preliminary examination procedure – Obligation for the Commission to start that entire procedure over again – None
(Art. 108 TFEU)
(see paragraphs 223-226)
Aid granted by a Member State – Administrative procedure – Right of the persons concerned to be heard – Limits
(Art. 108 TFEU; Council Regulation 2015/1589, Art. 24(2))
(see paragraphs 227-233)
Acts of the institutions – Withdrawal – Unlawful acts – Commission decision to take no further action on a complaint seeking a finding of infringement of the provisions of the FEU Treaty relating to State aid – Adoption of a new decision repealing and replacing the decision not to take further action on the complaint – Whether permissible – Conditions
(Art. 108 TFEU)
(see paragraphs 252-259)
Résumé
The General Court, sitting in extended composition, declares to be lawful the decision of the European Commission finding that the decision by a Greek State undertaking to refer the resolution of a commercial dispute between it and another undertaking to arbitration did not involve the grant of State aid within the meaning of Article 107(1) TFEU. In so doing, the General Court provides clarification on the application of the market economy operator principle in order to determine whether, by its decision to entrust the resolution of their dispute to an arbitration tribunal, the Greek State undertaking conferred an economic advantage on the other undertaking concerned.
Dimosia Epicheirisi Ilektrismou AE (DEI), an electricity producer and supplier controlled by the Greek State, and its principal client, Metlen Energy & Metals AE (‘Metlen’), were involved in a dispute concerning the electricity supply tariff charged by DEI to Metlen.
In 2011, DEI and Metlen signed an arbitration agreement by which they voluntarily agreed to entrust the resolution of their dispute to the permanent arbitration body of the Rythmistiki Archi Energeias (Greek Energy Regulator, Greece; ‘the RAE’). Thus, the resolution of the dispute was entrusted to an arbitration tribunal in accordance with the arbitration agreement and the rules governing the permanent arbitration body of the RAE.
According to the arbitration agreement, the task with which the arbitration tribunal was entrusted consisted in determining, on the basis of negotiations which took place between DEI and Metlen, an electricity supply tariff corresponding to the specific characteristics of Metlen and covering at least the costs borne by DEI. In addition, the arbitration tribunal had to take account of the legislative framework specified by the parties to the arbitration agreement, comprising inter alia a decision of the RAE establishing the basic principles for pricing of electricity to high-voltage customers.
In the meantime, Metlen continued not to pay any of DEI’s monthly bills, since the parties remained in disagreement as to the tariff to be applied. DEI then threatened to stop supplying Metlen with electricity if it did not settle the disputed bills, which led Metlen to lodge a complaint with the RAE by which it sought the adoption of interim measures.
Following Metlen’s complaint, by decision of 9 May 2012, the RAE set, on a provisional basis, an electricity supply tariff applicable to Metlen.
On 15 June 2012, DEI lodged a complaint with the European Commission against that decision (‘the 2012 complaint’), arguing that the provisional tariff set by the RAE in that decision obliged it to supply Metlen with electricity at a price below its costs and constituted unlawful State aid.
By decision of 31 October 2013, the arbitration tribunal set an electricity supply tariff applicable to Metlen for the period from 1 July 2010 to 31 December 2013 (‘the arbitration award’).
On 23 December 2013, DEI lodged a second complaint with the Commission against the arbitration award, alleging infringement of the rules on State aid, and arguing that the tariff fixed in the arbitration award was lower than that which had been fixed provisionally by the RAE.
By letter of 12 June 2014, the Commission informed DEI that no further action would be taken on that complaint (‘the contested letter’). Consequently, DEI brought an action before the General Court for the annulment of the contested letter, registered as Case T‑639/14.
In the course of those proceedings, the Commission dismissed DEI’s complaints by decision of 25 March 2015 (‘the first contested decision’), (
1
) finding, first, that the 2012 complaint had become devoid of purpose and, second, that no advantage within the meaning of Article 107(1) TFEU had been conferred on Metlen, since DEI’s decision to refer their dispute to arbitration adhered to the private investor test.
DEI also brought an action before the General Court for the annulment of the second contested decision, registered as Case T‑352/15.
By order of 9 February 2016, (
2
) the General Court held that there was no longer any need to adjudicate on the action in Case T‑639/14. Hearing the appeal, the Court of Justice however set aside that order by judgment of 31 May 2017 (
3
) and referred the case back to the General Court, where it was registered as Case T‑639/14 RENV.
On 14 August 2017, the Commission adopted a second decision, repealing and replacing both the contested letter and the first contested decision (‘the second contested decision’). (
4
) Relying on reasons identical to those set out in the first contested decision, that second decision confirms, first, that the 2012 complaint had become devoid of purpose, since the tariff fixed by the arbitration award had retroactively replaced the provisional tariff fixed by the RAE decision of 9 May 2012 and, second, that the arbitration award did not involve the grant of State aid within the meaning of Article 107(1) TFEU.
DEI also brought an action before the General Court for the annulment of the second contested decision, registered as Case T‑740/17.
By judgment of 22 September 2021, (
5
) the General Court annulled the contested letter and the first and second contested decisions, considering that the arbitration award was capable of conferring an unlawful advantage on Metlen imputable to the Greek State and, in so doing, making possible or perpetuating the granting of unlawful aid.
Hearing the appeal against that judgment, the Court of Justice held, inter alia, that the General Court had erred in law in holding that the arbitration award was a State measure capable of constituting State aid. (
6
)
According to the Court of Justice, the Commission had been fully entitled to consider, first, that, in the circumstances of the case before it, the only State measure capable of constituting State aid was DEI’s decision to conclude the arbitration agreement with Metlen and, second, that, in order to know whether that decision had conferred an advantage on Metlen, it was necessary to ascertain whether a private operator, under normal market conditions, would have taken that decision under the same conditions.
The Court of Justice accordingly set aside the initial judgment and referred the cases back to the General Court for it to adjudicate on the pleas and arguments raised before it on which the Court of Justice had not given a ruling.
Findings of the General Court
In support of its action for annulment of the second contested decision, DEI disputes the applicability and, in the alternative, the application of the private investor test in that decision in order to determine whether an advantage was conferred on Metlen.
As a preliminary point, the General Court observes that the concept of ‘aid’ within the meaning of Article 107(1) TFEU cannot cover a measure granted to an undertaking through State resources where it could have obtained the same advantage in circumstances which correspond to normal market conditions. Although the assessment of the conditions under which such an advantage was granted is made, in principle, by applying the market economy operator principle, the test to be employed in practice in a given case must be determined on the basis, inter alia, of the nature of the transaction envisaged by the public entity concerned. The tests that may be applied include the private investor test.
That observation having been made, the General Court rejects, first of all, DEI’s arguments disputing the applicability of the private investor test to the present case.
As regards, more specifically, DEI’s argument to the effect that its consent to settlement of the dispute through arbitration cannot be examined in the light of the private investor test because that decision is not an economic activity, the General Court notes that, according to the case-law, the actions of a market economy private operator are, in principle, guided by prospects of profitability. In referring the dispute for arbitration with the RAE, DEI sought a certain level of profitability within the meaning of that case-law since, according to its own explanations, that procedural choice would have enabled it to recover at least part of the amounts owing by Metlen as quickly as possible.
Since it is DEI’s decision to have recourse to arbitration that must be examined in the light of the private investor test, the General Court, relying on the judgment on appeal, also dismisses DEI’s argument to the effect that the comparison of its behaviour with that of a hypothetical private operator should be made in relation to the tariff fixed in the arbitration award. Moreover, the fact that DEI could not have foreseen the price that would be fixed in the arbitration award does not negate the applicability of the private investor test in the present case.
As regards application of the private investor test to the facts of the present case, the General Court then examines DEI’s arguments aimed at demonstrating that, at the time of application of that test in the second contested decision, the Commission based itself on a manifestly incorrect assessment of both the facts and the appropriate framework and evidence falling to be assessed in the light of that test.
In its examination of those arguments, the General Court begins by observing that the Commission adopted the second contested decision at the end of the preliminary examination procedure under Article 108(3) TFEU. In accordance with the objective of that provision and its duty of sound administration, the Commission, in an endeavour to overcome any difficulties encountered, had to employ the measures and verifications necessary to remove any doubts as to the compatibility of the measure in question with the internal market. Where the preliminary examination procedure did not enable it to overcome all the difficulties involved in determining whether the measure in question was compatible with the internal market, the Commission was under a duty to initiate the procedure under Article 108(2) TFEU, without having any discretion in that regard.
Having regard to that clarification, the General Court examines whether the arguments put forward by DEI enabled doubts to be identified as to the compatibility of its decision to sign the arbitration agreement with State aid law, which would have obliged the Commission to initiate the formal investigation procedure.
In that regard, the General Court finds, first, that DEI has not provided indicia which might be able to call into question the Commission’s assessment of the facts giving rise to the dispute and of the circumstances in which the dispute was brought before the arbitration tribunal, as described in the second contested decision.
Second, the General Court rejects DEI’s argument to the effect that the Commission ought to have had serious difficulties when it examined the context in which DEI took the decision to resort to arbitration, including in particular the situation of Metlen and of the relevant market.
First, it considers that DEI’s choice to refer its dispute to arbitration meets the ‘profitability’ test that a hypothetical prudent private investor would have sought in DEI’s situation acting in normal market conditions since, according to DEI’s own explanations, that choice made it possible to obtain sums owing to it by Metlen as quickly as possible.
Secondly, the General Court notes that, in accordance with the requirements laid down by the Court of Justice in the judgment on appeal, the Commission examined, first, the circumstances in which DEI had taken the decision to make use of arbitration and, second, ascertained whether a private operator would have taken that decision under the same conditions. On that latter point, DEI has not adduced any evidence showing that the Commission ought to have had doubts as to the use of arbitration by a normally prudent and diligent private operator in the same situation as DEI.
Thirdly, the General Court emphasises that the private investor test does not mean that the Commission was required to prove that a private operator would have taken exactly the same decision as DEI in the present case, but rather that the latter’s decision was reasonable in a market economy in the light of the circumstances in which it was taken.
In the light of the foregoing, the General Court concludes that DEI has failed to demonstrate that the Commission ought to have had doubts in its application of the private investor test to the facts of the present case, which ought to have led it to initiate the formal investigation procedure. It accordingly rejects DEI’s arguments calling into question the application of that test by the Commission in the second contested decision.
The General Court also dismisses the complaints directed at the Commission’s decision not to take further action on the 2012 complaint, holding that, at the time of adoption of the second contested decision, the Commission could validly find that the 2012 complaint had become devoid of purpose following the delivery of the arbitration award.
Lastly, the General Court dismisses DEI’s plea disputing the lawfulness of the replacement of the contested letter and the first contested decision by the second contested decision since, by the latter decision, the Commission not only withdrew the contested letter and the first contested decision, but also specified the illegality it wished to remedy, in accordance with the requirements laid down by the Court of Justice in DEI v Commission (C‑228/16 P).
In the light of those considerations, the General Court dismisses the action in Case T‑740/17 RENV and declares that there is no longer any need to adjudicate in Cases T‑639/14 RENV II and T‑352/15 RENV.
(
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)	Commission Decision C(2015) 1942 final of 25 March 2015 (Case SA.38101 (2015/NN) (ex 2013/CP) – Greece – Alleged State aid granted to Alouminion SA in the form of electricity tariffs below cost following an arbitration decision) (OJ 2015 C 219, p. 2).
(
2
)	Order of 9 February 2016, DEI v Commission (T‑639/14, EU:T:2016:77).
(
3
)	Judgment of 31 May 2017, DEI v Commission (C‑228/16 P, EU:C:2017:409).
(
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)	Commission Decision C(2017) 5622 final of 14 August 2017 (Case SA.38101 (2015/NN) (ex 2013/CP) – Greece – Alleged State aid to Alouminion SA in the form of electricity tariffs below cost following an arbitration decision) (OJ 2017 C 291, p. 2).
(
5
)	Judgment of 22 September 2021, DEI v Commission (T‑639/14 RENV, T‑352/15 and T‑740/17, EU:T:2021:604).
(
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)	Judgment of 22 February 2024, Mytilinaios v DEI and Commission and Commission v DEI (C‑701/21 P and C‑739/21 P, EU:C:2024:146; ‘the judgment on appeal’).